Peter Espeut | 'Ginnalship' and the gay agenda

Recent judgments favourable to the gay lobby delivered by courts in Belize and Trinidad have caused Jamaica's LGBTQI advocates - including the editor of this newspaper - to get their tails up. They smell victory! And they are jumping for joy in anticipation.

The impression they would like to create is that the reasonableness and logic of their position is being acknowledged and accepted and by more and more people internationally, and, therefore, Jamaica should quickly follow suit. Nothing could be further from the truth.

The judgment of the court in Trinidad is on hold pending appeal, and my colleague and erstwhile classmate, the Rev Clinton Chisholm, has been chipping away at the reasonableness and logic of the Belize judgment. In the medium term, neither may stand, so the jubilation is premature.

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. Therefore, Jamaica's constitutional environment is unique, and judgments elsewhere may be irrelevant here. Because of this, the local gay agenda now being conducted is less about direct court challenges to the buggery law and more about ginnalship.

Let me explain.

Section 2 of Jamaica's Sexual Offences Act (SOA) passed in 2009 defines "sexual intercourse" 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 word 'rape', therefore, cannot be used to refer to forced buggery, since the law does not define buggery as sexual intercourse; forced buggery would fall under the heading 'grievous sexual assault'.

'Ginnalship' campaign

The minimum sentence for rape is 15 years, vs five years for grievous sexual assault. And so the ginnalship LGBTQI campaign shouts: "The law is unfair to men and boys who are victims of forced buggery. Redefine sexual intercourse to include 'penis-to-anus' sex so that forced buggery can get the same penalty as rape.". This sounds reasonable, doesn't it? But it is pure ginnalship!

If the real objective was to be fair to victims of anal-sex abuse, a simpler solution would be to amend the penalty for grievous sexual assault to be equal to the penalty for rape. But that would not serve the real purpose of the ginnalship agenda.

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, thereby legalising buggery in Jamaica.

Further, 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) of Jamaica's Charter of Fundamental Rights and Freedoms, and, therefore, conceivably, a new constitutional challenge like in Belize or Trinidad might stand a better chance of success.

Watch for the ginnalship!

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