Buggery: the devil is in the details
In an article published in your newspaper on December 3, 2014 under the heading 'Letting anal rape off the hook?', Ms Tenesha Myrie stated as follows:
"The concern is being expressed that if the law recognises anal rape, the buggery law would be impliedly repealed and consensual anal sex will be legalised. That is not the case ... . In our current legal framework, the mere recognition of anal rape will not result in the legalisation of buggery. This has not happened in any other jurisdiction, including Barbados and Guyana, which maintain their laws on buggery and expressly recognise forced anal penetration of the anus with a penis as rape."
What Ms Myrie has neglected to mention is the matter of the savings clause, which Mr Peter Espeut dealt with so clearly in his article of November 14. Presently, the buggery law (s. 76, 77 and 79 of the Offences Against the Person Act) covers both consensual and forced anal penetration. This law is saved by s.13 (12) of the Charter of Rights (2011), which saved laws relating to 'sexual offences'.
The introduction of a new provision that deals specifically with forced anal penetration could result in the existing law being interpreted as dealing only with consensual anal penetration. It would then mean that the remnants of the buggery law would be different from that which was saved in the 2011 Charter of Rights which would make it vulnerable to constitutional challenge.
The 2003 Lambert Watson Privy Council case makes it clear that changes in the form of a law are sufficient to remove a law from the protection of the savings law clause in the Constitution. The changes in that case led to what can be termed the 'judicial abolition' of the mandatory death penalty.
Further, the recently discontinued Jaghai constitutional challenge should be sufficient warning to us all of the need to keep the buggery law protected, that is, of course, if one is interested in keeping the law! This takes us to the point of examining the rationale for this savings-law clause.
Using the language of human rights to push LGBT claims has worked well in some countries. Because of this powerful push, even when documents do not expressly allow for particular LGBT claims, a court may be tempted to include these claims as 'rights' - as happened in Canada. In the case of Vriend et al v The Queen in right of Alberta et al (156 D. L. R. 385), it was held that "the exclusion of sexual orientation under the Alberta Individual's Rights Protection Act was unconstitutional". This ruling was made even though under the Canadian Charter, there is no stated right to freedom from discrimination on the grounds of 'sexual orientation'.
In this case, "an individual's employment at a private religious school was terminated when his employer discovered he was homosexual. He complained to the Alberta Human Rights Commission, which rejected his complaint because sexual orientation was not a prohibited ground of discrimination under the Individual's Rights Protection Act". However, the court ruled otherwise. Jacobucci J. (one of the judges, who gave the majority opinion) held, inter alia, as follows:
"where the denial is based on grounds expressly enumerated in s. 15 (1) or one analogous to them, (emphasis mine) it will generally be found to be discriminatory, although there may, of course, be exceptions. It could, therefore, be assumed that a denial of the equal protection and benefit of the law on the basis of the analogous ground of sexual orientation is discriminatory." (p 386)
The Canadian Charter of Rights was one of the documents which influenced the making of our own charter. Having all this information and realising that human rights can be pushed to extreme and irrational limits, the Jamaican Parliament decided in the Charter of Rights to save marriage along with certain other laws, including laws relating to 'sexual offences', thus saving the buggery law.
Ms Myrie has referenced Barbados and Guyana in a very definitive manner. I hope the future will prove her right on this particular point. In Barbados, under the Sexual Offences Act passed in 1992, 'rape' includes the "introduction to any extent ... of the penis of a person into the anus or mouth of another person". Locally, 'rape' has always been viewed as 'sexual intercourse' by force or/and without consent. Redefining rape to include 'forced anal penetration' will affect how we view anal penetration. It would also allow 'consent' as a defence, thereby clothing anal penetration/buggery with acceptability, albeit that it is being done in a negative manner.
Additionally, any specific provision for "forced anal penetration" could be viewed as an amendment to the buggery law, thereby compromising its integrity. In Guyana, a relevant provision is Section 353 (b) of the Criminal Law (Offences) Act, which states, inter alia, that "Everyone who ... assaults any person with intent to commit buggery ... shall be guilty of felony and liable to imprisonment for 10 years." This approach, with a sentence commensurate with rape, may assist with dealing with some of the concerns raised by Ms Myrie.
The current laws provide recourse and avenues for justice which, unfortunately, have not been always fully utilised. The use of non-custodial sentences in these cases is not only distressing but also inappropriate and inadequate. This happened in a case heard in the May Pen Circuit Court on October 26, 2011 in which the accused pleaded guilty to four counts of indecent assault and three counts of buggery in relation to a nine-year-old boy. The medical evidence was that damage had been done to the poor boy's anus. Suspended sentences were awarded on all counts.
Part of the solution to the issues highlighted by Ms Myrie and others could, therefore, involve utilising to the maximum the custodial sentencing options, which are currently available.
The challenge that confronts this joint select committee is how to proceed without undermining both the savings clause of the Charter of Rights, as found in Section 13 (12) (a), and the 'buggery law' as found in Section 76, 77 and 79 of the Offences Against the Person Act.
Until the people of this country have had an opportunity to decide on the future of the buggery law, nothing should be done, wittingly or unwittingly, that could result in its repeal.