Would Decriminalisation of the Buggery Law Restrict Religious Freedom in Jamaica and the Caribbean?

 

Faculty of Law building, UWI, Mona
Photo by DJ Miller

That’s the provocative title of a lecture given today at the Faculty of Law, Mona Campus, UWI. Kind of.

The lecturer was Robert Wintemute, Professor of Human Rights Law, King’s College, London. The actual title was “Lesbian and Gay Rights in the Caribbean: Would Decriminalisation Restrict Religious Freedom?” but I think my title is snappier 🙂 Also, let me acknowledge that there is no such law as the Buggery Law, but the phrase is used in Jamaica as a short cut way of  referring to  sections 76 and 77 of the Offences Against the Person Act which state that:

76. Whosoever shall be convicted of the abominable
crime of buggery, committed either with’ mankind or with any animal, shall be liable to be imprisoned

and kept to hard labour for a term not exceeding ten years.
77. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of my assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years,
with or without hard labour.

Professor Wintemute started by sharing his personal story of growing up gay in Canada, in a society which told him that same-sex relationships were a sin.

“The message from my society was that I should hate myself. I had two plans, become a monk, or pay for a psychiatrist to cure me.”

Saying he eventually made peace with who he was, Professor Wintemute went on to outline the original legal status of all the countries in the British empire where, in 1957, sex between men was unlawful everywhere.

Fast forward to 2014, and sex between men has been decriminalized in all 47 members of the Council of Europe. Also, of the 35 member states in the Organisation of American States, sex between men has been decriminalized in  24 of the 35 member states. The other 11 states? All Commonwealth Caribbean countries with the exception of the Bahamas which decriminalized such relations in 1991.

He pointed out that according to the European Court of Human Rights, blanket bans on same sex activity are a violation of privacy rights.

In Dudgeon v UK, for example, the European Court of Human Rights said:

“…the offences are committed whether the act takes place in public or in private, whatever the age or relationship of the participants involved, and whether or not the participants are consenting. It is evident from Mr. Dudgeon’s submissions, however, that his complaint was in essence directed against the fact that homosexual acts which he might commit in private with other males capable of valid consent are criminal offences under the law of Northern Ireland.

“…The Commission saw no reason to doubt the general truth of the applicant’s allegations concerning the fear and distress that he has suffered in consequence of the existence of the laws in question. The Commission unanimously concluded that “the legislation complained of interferes with the applicant’s right to respect for his private life guaranteed by Article 8 par. 1 (art. 8-1), in so far as it prohibits homosexual acts committed in private between consenting males.”

“41.The Court sees no reason to differ from the views of the Commission: the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant’s right to respect for his private life (which includes his sexual life) within the meaning of Article 8 par. 1 (art. 8-1). In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life …either he respects the law and refrains from engaging – even in private with consenting male partners – in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution.”

Professor Wintemute also cited cases from the United Nations Human Rights Committee, and a case from the Inter American Court of Human Rights, Atala v Chile, where the Court ruled that a court order that children of an openly lesbian mother should be taken away, violated the Inter-American Convention on Human Rights.

“The cases show that this trend is not limited to the Global North,” Professor Wintenute stated,  citing cases from Ecuador, South Africa and Hong Kong.

The recent case in India, where the Supreme Court reinstated a law criminalizing homosexuality, he called “embarrassing” and said the court had refused to look at any developments outside India.

On the issue of religious freedom, Professor Wintemute said sexual freedom can co-exist along with religious freedoms in Jamaica.

“The starting point is a separation of law and religion,” he said. “…a law needs a justification outside a religious text.”

He said that decriminalization has not led to same-sex marriage in, for example, the Bahamas where decriminalization occurred over 20 years ago, and said fears of such consequences are unfounded as each country can proceed to discuss reforms at its own pace. He also noted that legislation in the UK and Canada has been specifically enacted to provide that expression of opinion on a religious matter shall not constitute an offence.

In Canada, Criminal Code s. 319 (3) (b) : “No person shall be convicted of an offence…if in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text.”

In the UK, the Public Order Act 1986 s. 29JA provides that “…the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intending to stir up hatred.”

“ …for the future for Jamaica, I hope the criminal law will be amended in the next year or two, this will be a minor concession. It will reduce stigma and give more gay and lesbian people the courage to come out and talk to their neighbours, and that is what will change things.”

A lively question and answer session followed including a contribution by Dr. Wayne West, from the Jamaica Coalition for a Healthy Society, who raised the issue of a Jamaican couple who had been living in the UK and fostering children. They were forbidden from fostering other children when they stated that if a child told them he/she was homosexual, they could not agree to tell that child that it was alright to be homosexual.

Professor Wintemute responded by saying that foster care authorities have to act in the interests of the child, and that the Johns would have been denied the opportunity to foster on the same basis that a White Supremacist couple would have been denied if they said they would not be able to tell a black child he/she was equal to a white child.