Earl Moxam, Senior GleanerWriter

Lobby group Lawyers Christian Fellowship, alert to the possibility of another legal loophole emerging that could lead to the abolition of the offence of buggery, is cautioning Parliament against placing it in a new Sexual Offences Bill.

The Joint Select Committee of Parliament considering legislative amendments covering a range of sexual offences had agreed, in principle, to place all of these offences in a single bill, to be entitled the Sexual Offences Act. Offences such as incest, buggery, rape and other forms of sexual assault would be placed in the new bill.

Rape and buggery are currently included in the Offences Against the Person Act, a law inherited from Jamaica's colonial past. In keeping with the committee's decision, however, they would be removed from this older law and placed in the new act.

But Shirley Richards, president of the Lawyers Christian Fellowship, brought to the attention of the committee the possibility that the provision against buggery in the new law might attract the attention of a reform-minded U.K.-based Privy Council.

Mandatory death penalty ruling

She recalled the 2004 Lambert Watson case, in which the Privy Council ruled against Jamaica's mandatory death penalty.

"The concern is that the new act could or will be seen as new legislation and, according to the Privy Council decision in the Lambert Watson case, new legislation ought to be in accordance with what is now termed and involves understanding of human rights," she explained.

A.J. Nicholson, the Attorney-General and chairman of the joint select committee considering the matter, agreed that it should carefully examine the issue, lest Parliament unwittingly create a pretext for the abolition of the increasingly controversial legal prohibition against buggery.

"We know that our final court of appeal (the Privy Council) can and has made rulings which move away from what they had ruled before, so I would commend it (for consideration)," he said.

During an earlierphase of the committee's deliberations, a similar concern about creating legal loopholes was largely influential in the decision to retain the existing gender specific definition of rape as that pertaining to the unlawful penetration of the vagina by the penis.

By keeping rape gender-specific, rather than gender-neutral, the committee reasoned that it would obviate the possibility that the courts could find that there were circumstances in which sex involving two males was lawful.

Similar concerns were raised a year ago during another committee's consideration of the new Charter of Rights bill.

A savings clause was inserted in the Charter of Rights to protect some existing laws from constitutional challenges.

Senator Nicholson was reminded of this provision, but he nevertheless expressed a strong preference not to risk even a remote chance of the existing anti-buggery prohibition being repealed.