Fri | Dec 15, 2017

Clinton Chisholm | Defending and dismantling buggery law sloppily

Published:Saturday | August 5, 2017 | 12:00 AM
Clinton Chisholm
Lord Bishop Howard Gregory.
Garnett Roper
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Two respected clergy colleagues have gone public in support of decriminalising buggery. These are my former UTCWI lecturer in psychology, Dr Howard Gregory, Anglican Lord Bishop of Jamaica, and my JTS classmate and former boss, Dr Garnett Roper, president of the Jamaica Theological Seminary.

While I disagree with aspects of their stance, I think it useful to point out a few crucial things.

The first has to do with a distinction between arguing for decriminalisation and being in support of a decriminalised behaviour or act. The online legal dictionary (Oxford) sees decriminalisation as "[t]he process of removing criminal sanctions from any activity, either by removing any prohibition of the activity or by moving responsibility for enforcement to a non-criminal process".

It may help to point out that the idea of a crime (not simply an offence) is at the heart of decriminalisation. Hence, getting a speeding ticket is an offence in law but not a crime, but robbery, like murder, is a crime.

So, the only sure logical conclusion that can be drawn about my two colleagues, or anyone else arguing for decriminalisation of buggery, is that they do not think that it should be a criminal act. It does not follow, without knowing more, that they support the act of buggery as being amoral (neither right nor wrong in and of itself). We all need to think critically and be fair to others whose views we may not share.

To be sure, an act that is decriminalised now could, over time, be legalised. Bear in mind, too, that a legal act or practice could be immoral. Compare slavery or double taxation by successive political regimes in Jamaica!

Adultery used to be both criminal and immoral. I suspect that not a few persons are happy that it has been decriminalised (no longer a criminal act)!

It is also important to know that law and morality don't always overlap, though at times they do. Here is where I disagree somewhat with my dear friend, Dr Roper. He is quoted, arising from a TVJ show called 'That's a Rap', as urging:

"Buggery/anal sex is a moral matter that is between consenting persons; it is a choice which I do not approve of, but that does not make it a criminal act, and what the ... 1864 law (Section 61 of the Offences Against the Person Act) does is to make it criminal with a maximum punishment of 10 years in prison ... ."

I would suggest to him that buggery in Jamaica is at once a moral and a criminal matter. Saying it ought not to be a criminal matter is radically different from saying it is not a criminal matter when there is a law against it.

Notice, though, lest we be sloppy in our reading of Dr Roper, that he says that "[buggery] is a choice that I do not approve of ...".

To the average person in the street, it's only a very thin, almost invisible line that separates support for decriminalisation from support of a decriminalised behaviour or act. For such persons, what is deemed as not criminal is regarded as implicitly okay for behaviour.

This is not so for lawyers, though, or for the non-lawyer who is thinking critically. As Dr Roper's comment shows, one can argue for decriminalisation of an act but still find the act unworthy of one's support.

Why do I disagree with Bishop Gregory? His pivots for decriminalisation, namely, privacy, consensuality and age maturity, do not sufficiently justify any sexual behaviour, without more, as the lawyers would say.

The same questionable pivots could be used for incest and other non-sexual acts that are still unlawful. Additionally, buggery must be evaluated intrinsically (what it is in itself). Is it the kind of act/behaviour that a society concerned with individual and societal health should encourage? I don't think so.

Would that religious centres encourage critical thinking and feedback during the weekly worship experiences.

- The Rev Clinton Chisholm is a theologian. Email feedback to columns@gleanerjm.com and clintchis@yahoo.com.