Thu | Jul 19, 2018

Editorial | Strained logic of sex court and buggery law

Published:Wednesday | December 27, 2017 | 12:27 AM

On the face of it, the establishment of a special court to deal with sexual offences seems a good idea, given, as Paula Llewellyn, the director of public prosecutions (DPP), puts it, the “tsunami” of such cases. But looks can be deceiving.

Currently, there are 426 of these cases held over from the Home Circuit Court, which sits in Kingston, when the Michaelmas term ended last week. They are now to be heard in the Easter term.

These cases include 90 charges of rape, 240 allegations of persons having sex with someone below the age of consent, 25 incidents of incest, and 20 of buggery. It is not clear how these numbers compare with those for previous years.  However, these hold-overs are in addition to  any sex-related cases traversed in circuit courts that sit in other parishes. Those numbers, we believe, are not likely to be inconsequential.

With regard to the buggery charges, it is hopefully the last time such prosecutions will be before the Jamaican courts as a specific and distinct criminal offence. As this newspaper has argued in the past, the state ought to have no role in determining how consenting adults, whatever their gender, engage in sex. While the law is deployed  primarily against males who have sex with males, it can be used against heterosexual couples who engage in anal sex in the privacy of their bedrooms.

The fact of this law thrusts upon the state the role of voyeur. More significantly, it diminishes the human rights of that estimated 10 per cent of  males, in Jamaica as in other countries, who may be homosexual and may wish to engage in sex or physically express their love for their partners in a way that is not the norm in heterosexual relationships.

Further, the presence of buggery as a criminal offence - except when it is performed in public, which may offend notions of decency, or as an act of rape - appears  to impinge of constitutional guarantees of “protection of privacy” as well as “respect for and protection of private and family life and privacy of the home”.

It seems to this newspaper indisputable logic that the law should be struck down when the constitutional challenge to it, now before the courts, is finally ruled upon. That decision should be sooner rather than later.

In relation to the central issue of a special court for sex crimes, the move will be tantamount to an application of cosmetics without hiding the blemish, much more changing the underlying features. 

The  sex cases traversed from the Home Circuit Court’s Michaelmas term were among 910 cases not heard during the session. They include murder, manslaughter, shooting with intent and a slew of other offences. They form part of the backlog of more than 400,000 cases in the court system.

That many sex cases were not heard was not because they were sex cases. It wasn’t an act of discrimination. Like the nearly 500 traverse cases, it was because the system couldn’t handle them. And this wasn’t because, in the strained logic of Justice Minister Delroy Chuck, cases are being prematurely forwarded  to the Supreme Court from the parish courts. It is a question of capacity handling and management.

There are inefficiencies in the system and judges need to work harder and smarter. But it is also a fact that there is a finite number of them to deal with all the cases in the system. Based on the list on the Supreme Court’s website, there are currently 30 appointed judges, seven acting judges and three masters of court. That is 40 members of the court to arbitrate on all the cases at that level of the system. Most stakeholders agree that number is  insufficient.

So, creating a court for sex crimes, without more, will merely mean a shuffling of cases - moving the delays from one category of offences to the other, without solving the problem.  Now, how is that for logic.