Shirley Richards, Contributor
IT IS being said by some that our laws against homosexuality are in breach of the right of the individual to freedom.
Now it would seem clear that for any society to function without chaos there must be a limitation on all rights even in the area of freedom of the individual.
Additionally, there are specific areas of human behaviour which are too important to the survival of the society and of individuals in the society to be left to the whims and fancies of either the individual at any given time or the society at any given time.
It is for these matters that we need the precision of formulation and power of sanction that are characteristic of a legal system.
Thus, even among persons who are serious contenders in the matter of the liberty of the individual, few of them would argue for a society which does not place a premium on the right to life to the detriment of the freedom of the individual to kill or maim if he desires.
But, suppose consenting adults in private decided to participate in an activity which resulted in harm one to the other, would this be permissible on the ground of consent of the participants?
Such a matter came before the Court of Appeal in England in 1992 in the case of R v. Brown (1992) 2W.L.R p.441.
In this case, the appellants, a group of sado-masochists, willingly and enthusiastically participated in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. Charges under the Offences against the Person Act were brought against the participants.
The court held that it "was not in the public's interest that a person should wound or cause actual bodily harm to another for no good reason and, in the absence of such a reason, the victim's consent afforded no defence".
Whether or not in years to come the English courts will stick to this definition of the "public interest" remains to be seen. But clearly in this case the courts decided to place a limit on freedom of choice particularly in the matter of sexual behaviour.
LEGAL RESTRICTIONS
A cursory glance at international legal systems will show that most systems have rules regulating human behaviour including physical violence, sexual relationships, the keeping of promises and compensation for injuries etc.
For us in Jamaica, we have chosen to maintain certain legal restrictions on the matter of sexual behaviour. Such restrictions include the matter of sexual relationships between men.
Additionally, there is the offence of incest where it is an offence for a man to have carnal knowledge of his daughter, sister or mother (The Incest Punishment Act). In such a case, the consent of the female is immaterial.
Thus, it is not only the act of consensual homosexuality which is a criminal offence but it is also the act of consensual incest.
Let us, therefore, be very careful for the same argument which is currently being used to decriminalise homosexuality that is, freedom of choice of the individual is the same argument which can be used to decriminalise incest and bigamy.
ANTI-HOMOSEXUALITY
It is also not quite honest to give the impression that the fight against HIV/AIDS is being hampered by anti-homosexuality laws.
The country of Uganda is a good example in that area. In Uganda, the Penal Code Act, which is the codification of almost all the offences and crimes one can commit in Uganda, prohibits homosexuality.
Section 140 expressly provides that any person who has carnal knowledge of any person, or permits a male person to have carnal knowledge against him or her against the order of nature is guilty of an offence.
Section 142 expressly provides that any person who unlawfully and indecently assaults a boy under 18 years of age is guilty of an offence.
Yet Uganda is one of the few countries in the world which has actually reversed the rate of HIV/AIDS infection. The following is a quote from a World Health Organisation (WHO) website: http://www.who.int/inf new/aids2.htm "Uganda, one of the first countries in sub-Saharan Africa to experience the devastating impact of HIV/AIDS and to take action to control the epidemic, is one of the rare success stories in a region that has been ravaged by the HIV/AIDS epidemic. While the rate of new infections continues to increase in most countries in sub-Saharan Africa, Uganda has succeeded in lowering its very high infection rates. Since 1993, HIV infection rates among pregnant women, a key indicator of the progress of the epidemic, have been more than halved in some areas and infection rates among men seeking treatment for sexually transmitted infections have dropped by over a third."
If there is any impediment to the fight against HIV/AIDS in Jamaica it is the failure of the Government to make the fight a national priority not the anti-homosexuality law.
Winston Churchill once said that "the greatest advances in human civilisation have come when we recovered what we had lost, when we learned the lessons of history".
Thus, before we even consider decriminalising homosexuality we need to look carefully at the situation in those countries which have already taken this path.
Take Canada as an example. In that country the definition of marriage has now been changed to allow for same-sex marriage. That has naturally led to spousal rights, adoption rights and to divorce rights for homosexuals.
It has also led to a curtailment in the way one is able to speak of homosexuality.
Thus in British Columbia a teacher, Curtis Kempling, was disciplined by his professional body for letters to the editor of a local newspaper expressing concerns about his role as a teacher and being required to teach positively about homosexuality.
Kempling wrote that "the homosexual lifestyle was medically unsafe and morally wrong". He was suspended for one month by the British Columbia College of Teachers for "conduct unbecoming a teacher". The British Columbia Court upheld this. Kempling has now been blacklisted as a teacher.
Additionally during the summer of 2002 in Quebec City, the General Assembly of the Unitarian Universalist Associa-tion, a liberal religious movement well-populated by influential, educated people presented a workshop urging endorsement of a wide variety of relationship styles including group marriage, open marriage and even "swinging".
Speakers at the workshop declared that being openly polyamorous should be accepted as being openly gay. One report, citing various experts, raised the possibility that some people's 'need' for sexual variety is genetically based.
These are the issues which Canada is now struggling with! Is this where we want to end up as a nation?
It seems to me that as long as societies uphold the basic human rights (with the supporting infrastructure) that they should be free to determine what other rules they may want to adhere to as a society.
This principle of national self-determination is one which should be respected by other societies. There may come a time when the majority of the local populace decides that it is time to change the laws against homosexuality but until that time comes let's leave the law as is.
THE CONTEXT OF DUTY
This, however, does not give anyone the right to abuse persons accused of being involved in homosexuality. The principle of imago Dei which is generally accepted by Christian society leads to the recognition of the dignity and self-worth of all persons (imago Dei principle that all human beings are made in the image of God).
By that principle even the criminal is to be treated with a certain minimum level of respect. Thus at no time should we be guilty of thinking that homosexuals are any lesser beings than ourselves even though we may strongly disapprove of their behaviour.
Like anyone else, they are entitled to full protection of the law. Violence and abuse of homosexuals have no place in a loving, caring society. This is a message which needs to come from the pulpit. A person caught in the act of homosexuality has the right to be judged by the courts, not by lynching mobs or angry individuals.
It has been said that "human rights tradition has since the second World War become the first world religion, albeit without God, church or rituals."
Let us not in Jamaica make that mistake. Freedom of choice and the whole matter of the liberty of the individual must be seen in the context of duty the duty of man to adhere to the natural order of life.
In the beginning ... God created a MAN and a WOMAN.
Shirley Richards, an attorney-at-law, is vice-president of the Lawyers' Christian Fellowship.
