-The Buggery Law as found in the Offenses Against The Person Act
The campaign to decriminalize "the abominable crime" of buggery in Jamaica has been met with many obstacles.
Essentially it has 3 contending issues. One is public health, another is human rights, and the third is state protection of the vulnerable from those that would wish them harm.
The argument to decriminalize the offense on the grounds of it being a breach of the fundamental and inalienable human rights as entrenched by the constitution (primarily through the recently passed Charter of Rights) is perhaps the most compelling argument. I also posit that this was the primary line of reasoning that led to the repeal of sodomy laws in the US states vis a vis the ruling in Lawrence v Texas. The argument is pretty basic in its application which is essentially that sodomy/buggery laws unfairly and unconstitutionally isolate men who have sex with men and in turn creates in them an unapprehended criminal status which leaves them vulnerable to indiscriminate acts of abuse by the state and a hostile public often baying for their blood.
The freedom to love and express that love with another equally amorous human being that is legally allowed to reciprocate these affections is perhaps the most basic of human rights that the buggery law threatens.
We all want to fall in love, make love, and remain in love. The threat of criminal sanction for the expression of same-sex love predisposes men who have sex with men to a live lives on the edge of society with frequent furtive encounters to quench the insatiable thirst for companionship that all humans share. The denial by the state of gay men to legally express that which they feel is their innate human nature is considered by many to be a betrayal of one of the core functions of government which is to recognize and hold sacred the dignity accorded to each and every human being. A law which criminalizes activity which is believed to be innate to the nature of a segment of society can in turn be held to criminalize the identity of such persons and therefore it cannot be compatible with a democratic society resting on several pillars one of which touts the equality of all men under the law irrespective of class, race, or creed. Therefore the spirit of the buggery law is incompatible with democracy and as a result it should be done away with.
I wonder how compelling such an argument is outside of a philosophical context though.
The public health argument, however, is a little more tricky. I've touched this topic a few times before and each time I re-visit it I am more perplexed. At face value given the prevalence rate of HIV in Jamaican MSM it appears almost paradoxical to suggest repealing the law. How can it be that curbing a behaviour that is supposedly intrinsic to a subset of the population with such a high rate of infection that it can be argued (successfully) that it is an infectious disease vector is counter-productive?
The argument which carries over from the human rights perspective is that by making unapprehended criminals of MSM those that would seek to offer medical and other assistance would essentially be accomplices in their desire to carry out a criminal act. So the condom and water-based lubricant as distributed by the health worker becomes contraband and evidence of collusion. Fortunately this is not so in practice but what is to prevent this from happening given the legal predicament of the MSM? The de facto moratorium on arrests of MSM for buggery or the related "gross indecency" save for circumstances of public displays of affection is little comfort since this is not grounded in policy but moreso the evolving sentiments of the public.
If the buggery law is seen as one of many strategies to discourage the practice of anal sex as a high-risk sexual activity within the context of preventing anal sex then it must be brought to a state of compatibility with the human rights approach which makes love and the expression of it an inalienable right of every human being. This would necessitate an admission that anal sex can in fact be consensual as distinct from the "crime of buggery" which would therefore have to be made akin to rape which is non-consensual penetrative sex with a female.
Jamaica has long been averse to this concept of gender neutrality in rape for fear that this admission will render the buggery law illegitimate.
Despite these difficulties it must be that from a public health perspective the government has a commitment to address the peculiar vulnerabilities of MSM to HIV infection. Can this be accomplished with the buggery law as it stands? It would appear that gay rights and the buggery law in its current form are antithetical and incompatible. Therefore if government wishes to address the myriad of concerns specific to men who have sex with men the first thing that needs to be done is to repeal the buggery law and foster an environment of inclusion so as so to plant the seed of trust and mutual respect. Without these there is no way that targeted intervention strategies can be successful.
As it relates to the protection of the vulnerable to those that would wish them harm I speak specifically of same-sex carnal abuse. This is the primary function of the buggery law in its modern dispensation as argued by policy makers. As suggested earlier, a more sophisticated way would be first of all to consider that anal sex can be consensual, that men can consensually have sex with other men, and accordingly that they can also decline to consent. This would require a gender-neutral definition of sex and rape. Therein lies the problem.
What is clear from all of this is that as a people we must have frank and open discussions about this and other taboo issues if we ever expect to progress socially. We cannot shy away from such discussions and at the same time say we are working toward modernity. This is foolish.
The buggery law is an embarrassing colonial retention that must be re-visited urgently before it brings us any more embarrassment in this new globalized world.
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