Thu | Jan 17, 2019

Taylor's logic laughable

Published:Tuesday | April 24, 2018 | 12:02 AM


Orville Taylor's article 'From the closet to my Cabinet?' (Sunday Gleaner, April 22, 2018) makes the argument that since buggery is a crime, then former Prime Minister Bruce Golding's stance was a principled one and both former Prime Minister Portia Simpson Miller and current Prime Minister Andrew Holness are in error by not maintaining Golding's discriminatory position. He argues that "if [Holness] knows that any of his colleagues is a criminal, however much he disagrees with the statute that outlaws the behaviour, he is bound to keep him out of the Cabinet".

Within the same article he notes that sexual orientation is the mens rea for buggery. Both propositions, on purely legal terms, are fallacious.To deal with the second proposition first, buggery, as criminalised in the Offences Against the Person Act and as defined in common law, is what those of us who have been educated in law call a strict liability offence. There is no mens rea requirement.

Beyond that, sexual orientation is not mens rea for anything. Mens rea, as the first-year law students I have tutored are aware, refers to the guilty mindset required for each criminal offence; the term generally refers to whether someone's actions were what they intended to do, what they did regardless of being aware of the risk (recklessness), or what they did without carefully thinking about all the relevant matters (negligence). Sexual orientation would be properly described as a motive, not intention therefore not mens rea.


No legal basis


Among the eight things that disqualify a person from being a member of Parliament, neither being suspected of committing nor even convicted (and completed serving the sentence) of a crime is one of them. There is no legal basis for saying a "practising gay man" cannot be in Cabinet.

But then where does the homophobia come in? The answer is the fact that buggery does not only refer to gay men. Buggery criminalises anal sex without any qualification. Straight men and women can be convicted of buggery. The only people who can't engage in buggery are lesbian women, as there is no penis to penetrate an anus between them.

Mr Not-A-Lawyer writes his article justifying Golding's discriminatory statement against the LGBT community without recognising that if the likelihood to bugger was a disqualifier, only lesbian women would be fit for Parliament and, by extension, Cabinet. My only hope is that perhaps his article was meant to encourage Prime Minister Holness to engage in critical law reform practices given his position on LGBT persons being able to be a part of Cabinet. If that were his intention, he did not need the poor legal arguments.


Associate Director,

Programmes & Advocacy

Equality for All Foundation

Jamaica Ltd