Tue | Jul 7, 2020

Editorial | Momentum from Belize on buggery

Published:Thursday | August 11, 2016 | 12:00 AM

It is probable, and perhaps very likely, that the Belizean government will appeal this week's court ruling that its law against anal sex, or 'carnal intercourse against the order of nature', as it is called in the legislation, is unconstitutional.

Our sense, however, is that an irresistible momentum is under way that will provide the cure to scotopophilic Caribbean states, including Jamaica, which, for too long, have arrogated unto themselves the right to snoop around the bedrooms of consenting adults, armed with Old Testament handbooks, supposedly policing morality and upholding what Jamaica's Offences Against the Person Act calls "the order of nature".

What, in fact, these laws have done is to institutionalise discrimination against gay people - especially male homosexuals - in contradiction, as Belize's Chief Justice Kenneth Benjamin held, to their rights and freedoms under the constitution. This newspaper, of course, believes that Justice Benjamin's logic can be unassailably applied to Jamaica. In the event, his ruling will have persuasive effect in Jamaica.

The Belize case involved the gay-rights activist Caleb Orozco, who went to court to argue that Section 53 of the country's criminal code makes illegal, at the pain of 10-year jail terms, anal sex. While such laws, which exist in various formulations across the Caribbean, apply also to heterosexual couples who engage in anal sex, it is primarily intended as a deterrent to men who have sex with men.

Section 3 of Belize's constitution, dealing with fundamental rights and freedoms, enshrines a range of freedoms to Belizean citizens, regardless of "race, place of origin, political opinions, colour, creed or SEX" (our emphasis).

Moreover, Section 3(c), among other things, guarantees the individual "his personal privacy, the privacy of his home and other property, and recognition of his human dignity". Section 14 (1) expands on this, declaring: "A person shall not be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his reputation. The private and family life, the home and personal correspondence of every person shall be respected."




That respect for privacy must include not having voyeurs of the State possessing the legal right to monitor the sexual behaviour of adults, or of gay men being stigmatised and discriminated against, to the erosion of their dignity, even by agents of the State, with the undergirding of unconstitutional laws.

Derogation from the rights guaranteed by Belize is allowed in few circumstances, such as for public safety, national defence, public order, public morality, and public health. The latter is the last bastion upon which anti-gay crusaders have been constructing their case. Except that discrimination and stigma that are spawned by existing laws drive gay men underground and away from health services, thus compounding, rather than abating, high prevalence of unhealthy outcomes which they associate with men who have sex with men.

Significantly, in many respects, Section 3 of Belize's constitution is mirrored in Section 13 of Jamaica's, which declares the obligation of the Jamaican State "to promote universal respect for, and observance of, human rights and freedoms", as well as its guarantee of "respect for, and protection of, private and family life and the privacy of the home".

In the event, we believe that Maurice Tomlinson's challenge of Section 76 of Jamaica's Offences Against the Person Act, and its brimstone-spewing reference to the "abominable crime of buggery", brings with it a forceful headwind.