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Another challenge to buggery laws

Published:Sunday | May 26, 2013 | 12:00 AM

New legal bid launched to protect gays right to privacy

Barbara Gayle, Justice Coordinator

Another legal challenge has been filed against the country's buggery law.

Gay-rights activist Javed Saunja Jaghai has gone to the Supreme Court seeking changes to ensure that consenting male adults do not face criminal charges for buggery.

Jaghai is seeking the go ahead to take his case to the Constitutional Court for a declaration that the private sexual activities between consenting males must be excluded from the Offences Against the Person Act.

If he is successful, it would mean that the right to privacy - as contained in the Charter of Rights and Freedoms (Constitutional Amendment) Act, 2011 - will include the right of two homosexual men to engage in intercourse in privacy without facing the risk of being charged with a criminal offence.

A case-management conference will be held next month in chambers at the Supreme Court.

The attorney general has been named as a defendant in the matter.

Although Jaghai is seeking a declaration that private sexual activities between consenting males be excluded from the Offences Against the Person Act, he is also seeking an order that the act will continue to govern non-consensual acts and those which takes place with males under the age of 16.

In documents filed in court, Jaghai says he is a homosexual man and a citizen of Jamaica.

He disclosed that he was evicted from his house by his landlord on the alleged basis that his homosexuality would result in engaging in intimate acts with other men on the premises.

He said the landlord had considered such acts as illegal under the Offences Against the Person Act.

Section 76 of that act makes it an offence for two men to be engaged in sexual activities.

The maximum sentence is 10 years' imprisonment.

Section 77 forbids such sexual acts for which the maximum sentence is seven years, while Section 79 of the act forbids gross indecency between men, for which the maximum sentence is two years.

negative effects of current law

In the court document, Jaghai states that the current law has negative effects on his daily life as well as the lives of other gay men.

"These provisions place the claimant, as a gay man, at risk of being evicted from his premises or arrested, prosecuted and convicted simply because he seeks to engage in sexual conduct that is integral to the expression of his identity and is carried out in a sphere of private intimacy," said Jaghai in his claim.

He argued further that because of the law, he is forced to deny his identity or contravene the law.

According to Jaghai, the fear of criminal sanctions impedes him, and may impede other homosexuals from accessing public-health facilities geared towards HIV and AIDS.

He contends further that the Constitution guarantees him the rights which were overwhelmingly approved by both political parties in 2011, and that includes the right to privacy.

Jaghai further argues that the right to privacy or the right to be left alone should be seen not simply as a negative right to occupy a private space free from government intrusion, "but as a right to get on with your life, express your personality and make fundamental decisions about your intimate relationships - which do not harm anyone else - without being penalised".

He has also listed in his affidavit instances in which men who were engaged in private and consensual activities have been prosecuted and convicted.

The Government is named as the defendant because the claimant contends that to date the Government has not given an undertaking that it will repeal the sections of the Offences Against the Person Act under which homosexuals can be charged.

He contends that the Government has violated and continues to violate his right to privacy and equality before the law as guaranteed by the Charter of Rights.

In February, the United States-based advocacy group AIDS-Free World reported that it had filed a similar suit on behalf of Jaghai.

The group asked the court to determine if the anti-sodomy law breaches rights guaranteed under the Charter of Fundamental Rights and Freedoms which was passed into law in 2011.

That matter is scheduled to be mentioned on June 25.

Two homosexual Jamaicans have also mounted a legal challenge against the laws which criminalise the act of homosexuality, on the basis that they are unconstitutional and promotes homophobia throughout the Caribbean.

They have taken the matter to the Inter-American Commission on Human Rights, which is modelled on the European Court of Human Rights to which Jamaica is not a full member.

While any ruling made by that court would be only advisory, it would send a strong message of international disapproval of Jamaica's buggery laws.