Time to revisit the law on buggery (Observer)

Dr Derrick Aarons MD

THE reported opposition by Rev Anglin of the Jamaica Coalition of Churches and others to the statement made by Mrs Portia Simpson Miller in the leadership debate that the buggery law in Jamaica should be revisited and put to a conscience vote in Parliament (after members of parliament do consultations in their constituencies) could be deemed a knee-jerk reaction of opposition, if not reflecting double standards!

Laws by their very nature need to be and historically have been re-visited periodically in all societies and updated if necessary to make them more relevant to the period in which persons live. The buggery law in Jamaica may or may not be repealed if considered and voted on by Parliament, but to instantly object to any such deliberation of the matter smacks of prejudice and double standards.

Whilst many persons object to homosexuality for various reasons, biblical teachings regard adultery, fornication, and sodomy as sins. Our current law that dates back to the 19th Century and our days of British colonialism criminalises sodomy but not adultery or fornication. Religious leaders in Jamaica have not been agitating for the criminalising of adultery and fornication although such laws exist in some Muslim-dominated countries, yet some persons in Jamaica oppose the removal of a law that would make criminals out of persons having same-sex preferences and sexual activity between consenting adults. We should note that adultery and fornication also involve sexual activity between consenting adults.

The biggest ethical issue in countries of the south, including Jamaica, is injustice. How do we treat our fellow human beings? Are we fair and just? Most countries have a written charter of rights which purport the equality of all inhabitants, and their right not to be subject to any discrimination. Jamaica’s declaration is no different in this regard.

Research done by specialists inform us that human sexuality is a complex issue, which reflects the influence of various hormones on the developing foetus in the uterus, the influence of developmental hormones in growing children and the prevailing environment of their rearing, as well as the type and nature of eroticism that is learnt and experienced throughout childhood, adolescence, and adulthood.

How then, in this presumably enlightened period of our history and development, can we deny the need to take a fresh look at our laws on this subject? Science and knowledge about ourselves and the functioning of our bodies have increased greatly over the 200 years since our buggery law was written, and as our laws that regulate science and technology have been guided by research discoveries in, for example, forensic medicine, DNA sequencing, and epidemiology, then fairness dictates that we also revisit laws that were written to address moral issues in human sexuality and sexual choices in light of the research and knowledge we have gained in this subject over the past 200 years.

Some articles written in our local press over the past two months have sought to examine the issue of homosexuality from the perspectives of public health and policy, presumed acceptable behaviour, defence of sovereignty, survival of the tradition of the heterosexual family, and HIV transmission.

No article, however, has had a comprehensive approach that looks at all relevant factors in the discussion of this issue, as is required by any sound ethical analysis. Further, where health issues are concerned, we have to be guided by the research done by the public health specialists, and not by the views expressed by persons who may present one side of the ‘statistics’ on an issue without stating the limitations as is required by ethical research requirements.

Space does not allow a full ethical analysis of this issue at this time, but we should consider several factors when we discuss this matter. Are we not engaging in double standards and being unjust when we maintain a law against buggery but do not impose any law against lesbian sexual activity, fornication, or adultery? Are we denying persons their basic human right to choose who to love and how to express their love? Do we have a right to seek to find out what activity goes on in people’s bedrooms?

We would need to do so to properly enforce the current buggery law on our books. Our current public decency laws do not allow sexual activity (whether heterosexual or homosexual) in any public place, and so why should we go any further to legislate what sexual activity is permissible behind closed doors?

A good, ethical analysis of any issue requires a balancing act between many considerations, including ethical principles and codes, law, religious considerations, culture, values, emotions, personal beliefs, adequate information, social and political realities, consequences, and rational arguments. To leave out any of these important considerations in discussing this very emotive issue without informing readers of their absence or relative importance is to be shallow in analysis, self-serving, or intentionally misleading.

It is time for our Government, which has responsibility for the welfare of all our inhabitants (and conversely collects taxes from these inhabitants), to drive the public discussion of the scientific and social issues surrounding same-sex preferences, and for the relevant Church leaders to expound on why they think one sin is greater than another, or why one should be prosecuted over another.

Dr Derrick Aarons MD, MSc (Bioethics), PhD is a consultant bioethicist, palliative care and family physician providing specialist advice in ethical issues in Jamaica and the Caribbean, and is a member of the Executive Council of RedBioetica UNESCO.


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