The changing of the buggery law

One's sexual preference and what happens in the privacy of their bedroom should be no business of the State, argues a Gleaner Editorial, examining the buggery law and a ruling by a Bahamas court reiterating that marital rape doesn't exist in Bahamian law. 

Marital rape and the buggery law

Jamaica Gleaner

4 Sep 2022

LAST WEEK’S ruling by a Bahamas court reiterating that marital rape doesn’t exist in Bahamian law has animated the topic in Jamaica. Hopefully, it will also remind our legislature of a four-year-old recommendation by a parliamentary committee that a similar provision should be excised from this country’s sexual offences law.

In fact, the Holness administration should make changing the provision a legislative priority and at the same time assume the moral high ground of explaining to Jamaicans why the law against buggery is an assault of the individual’s right to privacy and, therefore, inimical to the interest of all of us. Indeed, the immediate next step should be a repeal of the section of the Offences Against the Person Act that makes buggery, one of the expressions of gay love, illegal.

In the Bahamian case, a woman seeking to end her 15-year marriage, in making the claim of cruelty and mental abuse, argued that she, for a long time, felt like a rape victim. Sex was loveless and without intimacy.

Said Justice Denise Lewis-Johnson in her written judgment: “The petitioner (the wife) alleged that it was standard for the respondent (her husband) to come home, ask for sex and if she refused, (forcibly) have sex with her and when he was satisfied, roll over, watch television, use his computer or go to sleep.”

The husband argued that his sexual needs were not being met. He drew fundamentalist religion precept that it was the obligation of a wife to satisfy her husband sexually. Justice Lewis-Johnson, in granting the divorce, accepted the wife suffered mental abuse, but held that rape, in the context of marriage, didn’t arise in Bahamian law.

“The petitioner’s evidence was heavily weighted on acts of sexual intercourse between the parties that she described as acts of rape by the respondent,” Justice Lewis-Johnson wrote. “I will not recount her evidence save to say that she states that as a result of the respondent’s behaviour, she felt like a rape victim. She further alleges that her physical and mental health have been negatively affected.”

DOES NOW ALLOW

However, the judge pointed out that The Bahamas’ Sexual Offences Act “does not allow for one spouse to rape the other”.

“In this place (the courts) we interpret existing laws and apply them,” she added. “We cannot and must not succumb to the temptation to reform laws.”

The Bahamian legislation defines rape as “sexual intercourse with another person who is not his spouse” without the consent of the victim or if the victim consented because of threats or fear of boldly harm. It is also rape if the perpetrator impersonated the victim’s spouse, or used some fraudulent or false representation to extract the consent.

If a case with similar facts to the one decided in Nassau last week were argued in Jamaica, its outcome would likely be the same. The Jamaican law defines rape as intercourse (vaginal penetration with a penis) without a woman’s consent. But unlike the Bahamian law that immediately declares in is definition that rape doesn’t arise between spouses, only deep into section five does the Jamaican law let on, indirectly, that husband can’t rape his wife, except in the following limited, narrowly defined circumstances:

■ If the spouses have separated and thereafter have lived separately and apart within the meaning of the Matrimonial Causes Act;

■ There is in existence a separation agreement in writing between the spouses; Proceedings for the dissolution of the marriage or for a decree of nullity of marriage have been instituted; or

■ There has been made or granted against the husband an order or injunction … for non-cohabitation, non-molestation or ouster from the matrimonial home for the personal protection of the wife.

In a 2018 report, a joint select committee of Parliament, which reviewed the Sexual Offences Act, recommended the deletion of the entire section of the law containing those provisions.

The committee argued, correctly, this newspaper holds, that the provision placed “married women in a disadvantageous position when compared to other women in relationships”.

Added the committee’s report: “The overwhelming argument was that a woman who was forced into sexual intercourse should be recognised as being raped, irrespective of her marital status and whether the perpetrator was her husband. Members agreed that once a woman has withheld her consent to sex in a relationship, irrespective of whether this occurred in marriage, it should be considered as rape.”

NO MEANS NO

In other words, “no” should mean just that: “No!” And that should be enshrined in law.

But even as the joint select committee took a progressive stance on several of the issues, it recoiled from recommending a definition of rape that included non-consensual penetration of the anus, and to formally propose equalisation of punishment for non-consensual penetration of the vagina (up to life imprisonment) and of the anus (up to 10 years). Fundamentally, there was a fear that these changes could be implied as amendments of the buggery sections of the Offences Against the Person prior, therefore freeing the provision of the constitutional savings clause that kept in place amended laws that were in force prior to Jamaica’s independence constitution.

As the recent RJRGLEANER/Don Anderson poll showed, homophobia remains strong in Jamaica. Indeed, over seven in 10 Jamaicans are against changing the buggery law, a 19th century law that fundamentally sets the State up as voyeur, peeping into people’s bedrooms, to determine what kind of sex people engage in and who is their sexual partners. That’s an infringement of people’s constitutional right to privacy and of free association.

An individual’s sexual preference, and what takes in private between consenting adults in their bedrooms, ought to be no business of the State. Moreover, when citizens, or majority, of whatever magnitude, support the erosion of the rights of an individual or groups they deem to be different, they also surrender their own rights. Which is what the Government should be explaining to Jamaicans with respect to the buggery issue.

 

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