Thursday, July 27th, 2017

Defending and Dismantling the Buggery Law Sloppily?

Two respected clergy colleagues have gone public in support of decriminalizing buggery. These are my former UTCWI lecturer in Psychology, Dr. Howard Gregory, Anglican Lord Bishop of Jamaica and my JTS classmate and former boss Dr. Garnett Roper. President of the Jamaica Theological Seminary.

While I disagree with aspects of their stance I think it useful to point out a few crucial things.

The first has to do with a distinction between arguing for decriminalization and being in support of a decriminalized behaviour or act. The online legal dictionary (Oxford) sees decriminalization as “[t]he process of removing criminal sanctions from any activity either by removing any prohibition of the activity or by moving responsibility for enforcement to a non‐criminal process.”

It may help to point out that the idea of a crime (not simply an offence) is at the heart of decriminalization, hence getting a speeding ticket is an offence in law but not a crime but robbery like murder is a crime.

So, the only sure logical conclusion that can be drawn about my two colleagues or anyone else arguing for decriminalization of the act of buggery, is that they do not think it should be a criminal act. It does not follow, without knowing more, that they support the act of buggery as being amoral (neither right nor wrong in and of itself). We all need to think critically and be fair to others whose views we may not share.

To be sure an act that is decriminalized now could over time be legalized. Bear in mind too that a legal act or practice could be immoral, compare slavery or double taxation by successive political regimes in Jamaica!

Adultery used to be both criminal and immoral. I suspect that not a few persons are happy that it is decriminalized (no longer a criminal act)!

It is also important to know that law and morality don’t always overlap though at times they do. Here is where I disagree somewhat with my dear friend Dr. Roper. He is quoted, arising from a TVJ show called That’s a Rap as urging

“Buggery/anal sex is a moral matter that is between consenting persons; it is a choice which I do not approve of, but that does not make it a criminal act, and what the… 1864 law (Section 61 of the Offences Against the Person Act) does is to make it criminal with a maximum punishment of ten years in prison…”

I would suggest to him that buggery in Jamaica is at once a moral and a criminal matter.  Saying it ought not to be a criminal matter is radically different from saying it is not a criminal matter when there is a law against it.

Notice though, lest we be sloppy in our reading of Dr. Roper that he says that “[buggery] is a choice which I do not approve of…”

To the average ‘person in the street’ it’s only a very thin, almost invisible line that separates support for decriminalization from support of a decriminalized behaviour or act. For such persons, what is deemed as not criminal is regarded as implicitly okay for behaviour.

This is not so for lawyers though or for the non-lawyer who is thinking critically. As Dr. Roper’s comment shows, one can argue for decriminalization of an act but still find the act unworthy of one’s support.

Why do I disagree with Bishop Gregory? His pivots for decriminalization, namely, privacy, consensuality and age-maturity do not sufficiently justify any sexual behaviour, without more, as the lawyers would say.

The same questionable pivots could be used for incest and other non-sexual acts that are still unlawful. Additionally, buggery must be evaluated intrinsically (what it is in itself). Is it the kind of act/behaviour that a society concerned with individual and societal health should encourage? I don’t think so.

Would that religious centres encourage critical thinking and feedback during the weekly worship experiences.

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