Wed | Dec 7, 2016

Buggery through the back door

Published:Friday | November 14, 2014 | 12:00 AM

Peter Espeut

It seems that those who want to make buggery lawful just won't bugger off. You might think that efforts to legalise buggery came to a halt when Javed Jaghai discontinued his lawsuit earlier this year, and with the Gleaner-Bill Johnson poll results showing that 91 per cent of Jamaicans are against any change. Which politician would be brave (or foolhardy) enough to try to go against such strong public opinion?

Apparently, Senator Mark Golding is. But he is not using a frontal approach; he is approaching the business of legalising buggery through the back door.

Section 40 of Jamaica's Sexual Offences Act (SOA) that was passed in 2009 requires that it be reviewed after five years. That process is under way, and it looks like efforts are being made to normalise buggery by adjustments to the SOA.

Currently, in Section 2 of the SOA, 'sexual intercourse' is defined as "the penetration of the vagina of one person by the penis of another person". And therefore, "A man commits the offence of rape if he has sexual intercourse with a woman ... without the woman's consent." The strategy is to create a criminal offence called 'forced anal penetration', which would be non-consensual anal sex. Right now, all anal sex is a criminal offence - forced or unforced. Creating a crime called 'forced anal penetration' suggests that 'unforced anal penetration' would be allowable, thus legalising buggery through the back door.

But under the SOA, anal sex is not considered to be sexual intercourse, and so the first step is to change the definition of sexual intercourse to include both vaginal and anal penetration. Watch for it!

Redefining sexual intercourse to include anal sex would convey the meaning that the act of anal penetration is equal in moral value to vaginal penetration, and therefore worthy of the same legal protection and support of society. It would be an effort to normalise buggery. The 91 per cent of Jamaicans who are against legalising buggery must watch carefully to see which politicians propose and promote this change. Senator Golding does not have to face the electorate, but he will need support in the Lower House to take his campaign forward.

definition change

There is a deeper strategy. Halsbury's Statutes of England and Wales, 4th Edition (2004) argues, "An Act may be repealed by a later Act either by express words or by implication." (page 766). Further, Halsbury's argues, "An act is intended to operate by way of repeal of an earlier enactment if it imposes a different penalty for the same offence or the procedure in relation to it." (page 768)

And so, if the definition of sexual intercourse is changed to include 'anal penetration', and the definition of rape is changed to include 'forced anal penetration', this could be interpreted in law to mean that the sections of the Offences against the Person Act relating to buggery will have thereby been amended. A new category of legal activity called 'consensual anal sex' will have been created.

legal challenge

Jamaica's Charter of Fundamental Rights and Freedoms contains a savings clause [Section 13(12)] making exempt from legal challenge any laws relating to abortion and buggery previously in force. This is one of the reasons the legal challenge by Javed Jaghai to the constitutionality of the buggery laws would have failed. But if the sections of the Offences against the Person Act relating to buggery will have been amended by changing the definitions of sexual intercourse and rape to include anal sex, the resulting law is not that which was saved by Section 13(12); and therefore, conceivably, a new constitutional challenge might stand a better chance of success.

Five years ago when Jamaica's Sexual Offences Act (SOA) was being debated, no one saw the need to create a new category of legal activity called consensual anal sex. Why now - five years later - is there such a strong push in this direction? Has the gay lobby - local and overseas - made political donations to the political parties to normalise gay sex? Since political donations are made in secret, it is hard to know for sure.

Law intersects with culture in that it offers guidance to the society as to which actions are acceptable and which are not, which actions are detrimental, and which actions work for the common good. Review of the SOA is a good thing, and should be conducted so as to lead to advances in promoting the common good, not the advantage of special-interest groups.

Peter Espeut is a sociologist and Roman Catholic deacon. Email feedback to columns@gleanerjm.com.