Tue | Dec 12, 2017

Martin Henry | Reviewing Jamaica's sex laws

Published:Sunday | August 27, 2017 | 12:00 AM

As private as its execution may be (or may have been), human sexual behaviour is a highly public affair. There is hardly any other area of human activity that is more regulated in public law in every society known, from the most primitive to the most advanced. And which is which when it comes to the regulation of sexual behaviour is an open question! Who can have sex with whom, where, and even when, how, and why have all been the subject of legislative action.

It is a totally puerile argument unworthy of the intelligent people who advance it in defence of their cause that the State has no business in people's bedrooms and that sexual conduct is purely a matter of adult consent. Nonsense!

The State, everywhere, has always been a third party under the sheets (where used) insexual encounters. And cannot not be in any imaginable future scenario. The only real question is, what role should this unexpellable third party play?

The parliamentary Sex Committee that went to bed after being established and which woke up three years later to complete deliberations and hearings on the Sexual Offences Act and related laws last month is to submit recommendations by November to the Parliament for 'modernising' the legislative framework governing sex in Jamaica.

The chairman, Justice Minister Delroy Chuck, says that there was pressure on the committee, with submissions from more than 20 groups demanding a contradictory variety of changes, some of which are polar opposites, to the sex laws of the country.

 

ALWAYS PRESSURE

 

Queen's Counsel Chuck puts up a brave front: "There is always pressure," he told media, "but that doesn't mean we succumb to pressure."

The greatest pressure point, left unmentioned, is not from any advocacy group, however powerful and however well organised for mobilisation and advocacy. The greatest point of pressure is for the Sex Committee and the Parliament to decide from which religious, philosophical, and cultural standpoint they will rule on the sex laws of the land for 'modernisation'.

The local LGBT community was very muted in its demands, biding its time for more favourable conditions to advance the global agenda, settling for advocating the removal of the 1864 buggery law that forbids anal sex between any two people and not limited to male homosexual coupling.

Globally, the homosexual agenda is both very clear and very consistent. The goal is to fully normalise homosexuality as a legitimate alternative sexuality with full rights of marriage and raising adopted children produced by heterosexual relations.

Never mind being a 'secular democracy', Jamaica has been very much an Anglican-Christian state in its jurisprudential history and underpinnings. Even now, the head of state, the Queen, is also head of the Anglican Church.

The more astute LGBT advocates and Christians are acutely aware that this is a contest of ground, of religion, and of philosophical world view. Despite the intellectual contortions of apologists on both sides, there can be no honest reconciliation of homosexual 'rights' and the hard position of the Christian Scriptures against same-sex relations. Ultimately, one has to be routed by the other.

When it comes to homosexuality, Christianity is an aberration, sharing company in explicitly prohibiting same-sex relations only with the other two Abrahamic monotheistic faiths, Judaism and Islam. All the other religions of the world either embrace and regulate homosexuality or ignore it. But no society can be found in history, no, not one, that has elevated homosexual relations to the status of heterosexual marriage. Contemporary post-Christian civilisation is breaking entirely new ground in the marital normalisation of homosexuality. It is an unprecedented turning point in human affairs, a colossal clash of cultures, of world views, and of religions.

But the parliamentary Sex Committee was pressured and burdened by other matters in the sex laws of the country. Matters such as buggery, marital rape, and the age of consent.

Head honcho of the Anglican Church in Jamaica and The Cayman Islands Bishop Howard Gregory ignited a firestorm when he made a 'personal' submission to the committee, recommending the removal of the offence of buggery from the law books, the widening of the definition of rape, and recognising marital rape.

The most important thing that Bishop Gregory said in a presentation laced with contradictory elements, something that truly broke with his Anglican tradition and with much of state Christianity, was that Christians should be cautioned against believing in the view that they must be the gatekeepers of the law.

While he had the buggery law in mind, his point is more generally true in a true secular democracy. A position held by non-mainstream Christian groups like the Seventh-Day Adventists and the Jehovah's Witnesses based on the long and bloody history of the state church persecuting and oppressing dissenters from its dogmas using the sword of the state.

Bishop Gregory is quite wrong on a number of points. And, as well, quite short-sighted in not seeing very clear cause-and-effect trend lines from the opening attack against the buggery law to the grand strategic goal of homosexual marriage, which has already splintered the world communion of his own church over the homosexual marriage of Episcopalian Bishop Gene Robinson in the United States.

The bishop's justifications of rescinding a law like the buggery law because it is difficult to prosecute and the act is by mutual consent is jurisprudentially weak and culturally dangerous. Then Bishop, in the same breath, calls for stiffening the marital rape law, which requires deep state intervention into the privacy of the matrimonial bed.

The buggery law, which criminalises anal sex, rests on the 19th century (Victorian) assumption that anal sex, consensual or non-consensual, is morally abominable. Formulated in an age when the link between germs and disease was poorly understood, the law has absolutely nothing to do with the prevention of disease or physical public health as six church groups, the Jamaica Coalition for a Healthy Society, and the president of the Marcus Garvey Research Institute argued in their presentations. We should leave interpreting laws outside of their context to the United States Supreme Court.

The buggery law may have been intended to "uphold Christian principles", as the JCHS argues. But what's to be done in a trending post-Christian, neo-pagan, secular humanist society? This is the kind of moral dilemma pressuring the Sex Committee and the Parliament itself.

When it comes to marital rape, Jamaican law already sensibly allows for marital rape in cases where there was physical separation of the man and the woman. Gregory and groups are pushing for the expansion of the law to cover rape in a cohabiting marriage. A deep challenge to the traditional Christian view of the nature of the marriage 'contract'.

But theological posture and moral scruples aside, any magistrate worthy of her bench trying a marital rape case would first have to establish whether the complainant cohabits with the defendant. If the answer is yes, the matter of which sex acts in the series were consensual and which were not immediately arises. And verified how in a private intimate matter, without witnesses, between a wife and husband living together, bearing in mind the bishop's own warning to the Government not to peep into bedrooms? We shall need signed transaction certificates like those introduced to fight praedial larceny!

And where is the credibility in a partner filing rape charges while still maintaining a cohabiting relationship? In any case, that would be the end of that marriage. The law is not always an ass, as it is not in this case. The asses may be those braying for its change!

The battle over definitions, rape, sexual assault, is not without moral, religious, philosophical, and cultural content. The matter could be easily resolved by simply introducing equivalent penalties, indicating equivalence of crimes, without having to change definitions that would undermine established gender distinctions in law. But the driving agenda for change is not equivalence of punishment, but, precisely, the elimination of distinctions.

I submit that Christians, that is, conservative Christians wanting to conserve the ancient faith in a trending post-Christian, neo-pagan, secular humanist society, have a far more important legislative, cultural, and philosophical battle to fight. This battle is the preservation of their own freedom of expression, freedom of religion, and freedom of conscience and of belief.

Christians and other conscientious objectors are facing active persecution and the denial of these fundamental freedoms in the most 'democratic' countries in the world over their stance on LGBT issues in this massive religious, philosophical and cultural war. They will have to be strategically willing to grant in order to get. One of the best ways to lose the whole war is to fight the wrong battles.

- Martin Henry is a university administrator. Email feedback to columns@gleanerjm.com and medhen@gmail.com.