Cape Law Internal

Assessment
Topic of Research:
Is the illegality of buggery in Jamaica compatible with the
Charter of Rights?

Name: Abigail Johnson

Candidate Number:
School: Campion College
Territory: Jamaica
Teacher: Donia Fuller
Date of Submission: March 21, 2014

Picture sourced from:

http://spurmag.com/blog/2012/12/17/morality-and-public-policy-in-the-law-ofnegligence/

Table of Contents
Aim and Objectives..3
Methodology....4
Findings...6
Discussion of Findings19
Recommendations...21
Bibliography22

Aim and Objectives

The researcher aims to determine if the Jamaican law against buggery is in keeping with the
rights of a person as outlined in the Charter of Rights. As such, the researcher has defined
specific objectives of the research. These are:
To assess the public opinion of the law against buggery in order to determine if it is favoured.
To assess the view that the law against buggery contravenes with the right to privacy of the
home and family life.
To analyse the moral perspective of the buggery law.

Methodology
In conducting this research, both primary and secondary sources were exploited. The
primary sources included an interview conducted with attorney-at-law- Shirley Richards and a
questionnaire to determine the public opinion of the buggery law. The secondary sources used
were the Charter of Fundamental Rights and Freedoms of Jamaica, The Offences against the
Person Act, principles from the case of Dudgeon v United Kingdom and R v Brown and
international law by means of the European Convention on Human Rights. In addition,
newspaper articles from the Jamaica Gleaner addressing the matter of buggery and sections of
the book, The Enforcement of Morals written by Lord Devlin for reference. The aforementioned
sources were acquired from the internet. The sources were valid as the material was true, and
they were also reliable as they yielded similar results.
As mentioned, primary sources were used. An interview was conducted with attorney-atlaw Shirley Richards on whether or not the buggery law violates the right to privacy. The
researcher used an online survey via Google Docs with thirty respondents to evaluate the public
opinion on buggery. The findings of the survey will be discussed in the section below.
Secondary sources were also used in carrying out the research. Section 13(3) (j) of the
Charter of Rights was referred to in order to establish that one has the right to respect and
protection of private and family life as well as privacy of the home. Sections 76, 77 and 79 of the
Offences against the Person Act (1864) were referred to in order to determine the statute which
prohibits buggery in Jamaica. An international statute, the European Convention on Human
Rights, was also viewed in order to determine the similarities and differences with the Jamaican
Charter of Rights. Facts and judgements of the cases of Dudgeon v The United Kingdom and R v
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Brown were used to assess the common law perspective on the law against buggery violating the
right to privacy. Sections of an essay from the book, The Enforcement of Morals by Lord Devlin
were also used. This was acquired from Google Books. An article published in the Jamaica
Gleaner on the 25th of December 2011 written by Byron Buckley entitled Backing Down On
Buggery? Some Personal Rights Can Be Sacrificed for General Morality was used. The article
written by Maurice Tomlinson entitled, A Tragic Case of Ignorance on the 11th of December
2012 in the Jamaica Gleaner was also used in the findings.

Findings
The buggery law dates from the sixteenth century where an act was passed by the
Parliament of England. The Act defined buggery as an, unnatural sexual act against the will of
God and man. This was later defined by the courts to include only, anal penetration and
bestiality.1 The Act remained in force until it was repealed and replaced by the Offences against
the Person Act 1828, and buggery would remain a capital offence until 1861. Legal statutes in
many former colonies have retained them, such as in the Anglophone Caribbean.
The Offences against the Person Act (1864) of Jamaica prohibits the act of buggery.
Sections 76, 77 and 79 explicitly speak against this:
Section 76: Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or
with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years.
Section 77: Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with
intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and
being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard
labour.
Section 79: Any male person who, in public or private, commits, or is a party to the commission by any male person
of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted
thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or
without hard labour.

An issue raised has been whether or not the Buggery Law is compatible with the Charter of
Rights. Section 13 (3) (j) (ii) of the Constitution reads:

R v Jacobs (1817) Russ & Ry 331 confirmed that buggery related only to intercourse per anum by a man with a
man or woman, or intercourse per anum or per vaginam by either a man or a woman with an animal. Other forms of
"unnatural intercourse" may amount to indecent assault or gross indecency, but do not constitute buggery.

(3) The rights and freedoms referred to in subsection (2) are as follows-

(j) the right of everyone to -

(ii)

Respect for and protection of

Private and family life, and

Privacy of the home;

There is an increasing number of Jamaicans across the moral spectrum who are prepared
to turn a blind eye to consenting adults - heterosexuals and homosexuals - engaging in
consensual anal sex in the privacy of their homes. In a survey conducted with thirty participants 2,
37 per cent stated that they would not discriminate against buggery between man and woman.
Another 40 per cent stated that it does not concern them; they are indifferent to the matter.

8. Would you discriminate against buggery between man and

woman?

Yes

23%

No

11

37%

It does not concern me

12

40%

The survey was done on March 2, 2014 via Google Docs among thirty participants. The participants were asked
ten questions.20 per cent of participants fell between the 12-16 age group, 73 per cent fell between the 17-21 age
group and 7 per cent fell in the 22 and older category. 57 per cent of participants were male, 43 per cent were
female. See the end of this section for the complete survey.

In the same survey, when the respondents were asked if they would discriminate against
buggery between man and man, 27 per cent stated that they would not, while another 30
per cent stated it does not concern them; they are indifferent to the matter.

9. Would you discriminate against buggery between man and man?

Yes

13

43%

No

27%

It does not concern me

30%

The public opinion on the buggery law was also assessed. When respondents were asked
if they were in support of the buggery law, 63 per cent said yes while 37 said no.

1. Section 76 of The Offences Against the Person Act (1864) states,

"Whosoever shall be convicted of the abominable crime of buggery,
committed either with mankind or with any animal, shall be liable to
be imprisoned and kept to hard labour for a term not exceeding ten
years." Do you support the law?

Yes

19

63%

No

11

37%

The first case being referred to is that of Dudgeon v UK 1981. Mr. Jeffrey Dudgeon, a
homosexual, alleged that the existence of laws in North Ireland which have the effect of making
certain homosexual acts between consenting adult males criminal offences, violated his right to
respect for his private life. He stated that his rights outlined in Article 8 and 14 of the European
Convention on Human Rights were breached.3 It was held that the laws prohibiting certain
homosexual acts between consenting male adults constituted an unjustified interference with
Dudgeons right to respect for his private life. The Court did not find a pressing social need to
make such acts criminal offences, there being no sufficient justification provided by the risk of
harm to vulnerable sections of society requiring. As a consequence of the judgment, male
homosexual intercourse was decriminalized in Northern Ireland in October 1982.

Article 8 of the European Convention on Human Rights reads, 1. Everyone has the right to respect for his private
and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." while
Article 14 states "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or
social origin, association, with a national minority, property, birth or other status."

The Departmental Committee on Homosexual Offences and Prostitution in 1957 established

under the chairmanship of Sir John Wolfenden (the "Wolfenden Committee" and "Wolfenden
report") regarded the function of the criminal law in this field as:
"to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to
provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially
vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical,
official, or economic dependence",

But not
"to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further
than is necessary to carry out the purposes we have outlined".

The Wolfenden Committee concluded that homosexual behaviour between consenting

adults in private was part of the "realm of private morality and immorality which is, in brief and
crude terms, not the laws business" and should no longer be criminal.
However, the United Kingdom Privy Council denied an appeal by homosexual men,
Laskey, Jaggard, Lucas, Carter and Brown who asserted that they had the right to engage in
sadomasochist sexual behaviour involving the inflicting of pain. Their argument was based, inter
alia, on Article 8(1) of the European Convention on Human Rights, which states that "everyone
has the right to respect for his private and family life, his home and correspondence".4
But in his ruling in the case (R. v Brown) Lord Templeman stated:
"It is not clear to me that the activities of the appellants were exercises of rights in respect of private and family life.
But assuming that the appellants are claiming to exercise those rights I do not consider that Article 8 invalidates a
law which forbids violence which is intentionally harmful to body and mind. Society is entitled and bound to protect

European Convention on Human Rights of 1953

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itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I
would answer the certified question in the negative and dismiss the appeals of the appellants against conviction."

The court found the appellants guilty of acts occasioning bodily harm, although the victim had
consented to the acts inflicted on him. The import of the ruling is that the law does have to reach
into the bedroom if acts deemed criminal - even if consensual - are being committed.
In an interview conducted with attorney-at-law Shirley Richards5 on whether or not the
Jamaican buggery law violates the right to privacy, she stated:
No my view is that it [the buggery law] does not but others say it does. It all depends on how
you define privacy. Who defines privacy for us? The United Nations? England? The USA?
Does the law against incest, whether between a minor and an adult or between two adults
violates the right to privacy? I say no, it does not. What about pornography? Is the law against
porn a violation of privacy? Some will say it is, I say no. I say closed doors do not determine
whether an activity is lawful or unlawful, there are other criteria apart from closed doors. As seen
in the case of Leslie Pilkington, a psychotherapist in England who was penalized for assisting an
individual who requested help from her as he was struggling with same-sex attraction.
Interestingly, countries which have legalized buggery (many times on the basis of their definition
of privacy) say that to penalize counseling of an individual in private who desires help with
unwanted same sex attraction is not a breach of his/her privacy. Or take the case of Adrian Smith
UK who was demoted at work because he said on his private Facebook page that, this is
equality gone too far. He made this comment in relation to the prospect of gay marriage in
churches. So we have the concept of privacy allowing for buggery in these countries but not
allowing for freedom of association or even freedom of speech in the privacy of your own home
5

Mrs. Shirley Richards is an attorney-at law and Past President of the Lawyers Christian Fellowship. Her office is
located at 9 Cecelio Avenue Kingston 10. She may be contacted at 920-7229 or at sprichards@cwjamaica.com

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or office. So it seems that the liberal definition of privacy extends only to the matter of same-sex
activities.
On the contrary, Maurice Tomlinson, in an article written to the Jamaica Gleaner6 stated:
First, before 1948, there was no universal standard of 'human rights'. Up to that point, each state
determined the rights enjoyed by its citizens. The result was that Germany thought it was fine to
kill millions of Jews, the Spanish government had no problem with executing millions of
'heretics' who didn't subscribe to Catholicism, slavery was permissible, and even today,
Christians are publicly beheaded in some Muslim countries for daring to preach the gospel.
Partly in response to these (so-often-religion-inspired) atrocities, the world decided in 1948 to
inaugurate the Universal Declaration on Human Rights (UDHR). This established basic human
rights standards for all citizens of earth, simply because they are humans. A state may grant
human rights protection over and above those found in the UDHR, but not less. While the UDHR
was not a binding treaty, it inspired the International Covenant on Civil and Political Rights
(ICCPR), and that is a binding treaty.
States could certainly exceed the protections afforded by the ICCPR, but must never provide for
less. Jamaica ratified this treaty in 1975 and is, therefore, bound by it. Among other things, the
treaty provides that the UN Human Rights Committee will interpret its provisions and assess the
states' compliance. In 1994, the UN Human Rights Committee found that a law similar to
Jamaica's which criminalized the right of consenting adults to engage in their private acts of
intimacy was a violation of the rights to privacy, as well as protection from cruel and inhuman

Maurice Tomlinson, article entitled, A Tragic Case of Ignorance. Published in the Jamaica Gleaner on December
11, 2012. Maurice Tomlinson is a former human rights lecturer at the University of Technology (UTech). He may be
contacted at maurice_tomlinson@yahoo.com

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treatment, and the right to equality before the law. By maintaining the anti-buggery law, Jamaica
is, therefore, in violation of its human-rights obligations.
Lord Patrick Devlin, in his collections of essays entitled, The Enforcement of Morals7,
has pointed out, there is a public morality that is critical to keeping society together; and that
society may use the criminal law to preserve morality that is considered essential to the society's
existence.8 For example, some persons fear that relaxing the buggery law will promote
homosexuality, which they consider inimical to family life and procreation.
The usual rubric under which one discusses these issues is that of the enforcement of
morality by the criminal law. Society, Lord Devlin, argued, is "held together by the invisible
bonds of common thought. If the bonds were too far relaxed, the members would drift apart. A
common morality is part of the bondage. The bondage is part of the price of society; and
mankind, which needs society, must pay its price." "We may argue," notes Devlin, "that if a
man's sins affect only himself, it cannot be the concern of society. If he chooses to get drunk
every night in the privacy of his own home, is anyone except himself the worse for it? But if half
of the population gets drunk every night, what sort of society would it be? You cannot set a
theoretical limit for drunkenness before society is entitled to legislate against the practice." He
further adds: "Immorality then, for the purpose of the law, is what every right-minded person is
presumed to consider to be immoral. Any immorality is capable of affecting society injuriously
and, in effect, to a greater or lesser extent it usually does; this is what gives the law its locus

Information has been sourced from the essay Morals and the Criminal Law which is based on the Maccabaean
lecture in jurisprudence, 1959, of the British Academy entitled, The Enforcement of Morals. The lecture was
published under the same title in 1959. It was reprinted, with some changes, under its current title in 1965, in a
collection of essays by Lord Devlin entitled The Enforcement of Morals. The essay was reprinted in Morals and the
Criminal Law with the permission of Lord Devlin and the Oxford University Press.

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standi. It cannot be shut out. But ... the individual has a locus standi too; he cannot be expected
to surrender to the judgment of society the whole conduct of his life."9

Views of the Law against Buggery in Jamaica:

A survey done with thirty (30) participants
2. Under what age group do you fall?

12-16

20%

17-21

22

73%

7%

22 and above

3. What is your gender?

Male

17

57%

Female

13

43%

The Morality and the Law, Chapter: Morals and the Criminal Law
http://nw18.american.edu/~dfagel/Class%20Readings/ALCReadings/Devlin_Morals%20and%20the%20Criminal%
20Law.pdf

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4. Section 76 of The Offences Against the Person Act (1864) states,

"Whosoever shall be convicted of the abominable crime of buggery,
committed either with mankind or with any animal, shall be liable to
be imprisoned and kept to hard labour for a term not exceeding ten
years." Do you support the law?

Yes

19

63%

No

11

37%

5. Do you believe that the Law against buggery gives way for
discrimination?

Yes

26

90%

No

10%

15

6. Section 13(3)(i) of the Constitution of Jamaica explicitly states the

grounds under which one has the right to freedom of discrimination.
However, sexual orientation ("straight" and "gay") is not included in
this section. Do you believe that the law should be amended to
include this?

Yes

13

43%

No

11

37%

20%

I don't know

7. Do you believe that the law against buggery was created to prevent
homosexuality rather than to protect the person and the animal?

Yes

18

58%

No

23%

I don't know

19%

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8. Do you believe that the law prohibiting buggery is based on a

religious or moral basis?

Religious

19

54%

Moral

13

37%

9%

I don't know

9. Would you discriminate against buggery between man and woman?

Yes

23%

No

11

37%

It does not concern me

12

40%

10.

Would you discriminate against buggery between man and man?

17

Yes

13

43%

No

27%

It does not concern me

30%

10. Would you discriminate against buggery between man and animal?

Yes

23

77%

No

7%

It does not concern me

17%

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Discussion of Findings
Based on the findings presented in the section above, the researcher has made the
following conclusion. The Jamaican law against buggery is in fact, compatible with the Charter
of Rights. As Jamaica is both a religious and morally conscious country, the law against buggery
must be upheld for the protection of its citizens.

Legal scholars have a problem with the law in that there is no use of force or denial of
consent is required for the commission of the offence of buggery. They also point out that most
prosecutions involve consenting adult men suspected of indulging in anal sex. "In all my years as
an attorney, I cannot recall seeing a man and a woman engaging in consensual anal sex ever
prosecuted for buggery," said Clayton Morgan, president of the Cornwall Bar Association. "The
buggery and gross indecency laws basically sanction discrimination against gay men."10
It may be argued that Jamaicas homophobic attitudes do not place the country in good
stead with the rest of the international community where human rights consciousness is currently
a top priority in many countries. However, in countries where homosexuality is legal, such as
France, the HIV rates among gays are still alarmingly high, still growing, and out of control,
despite their having access to preventative health care. Scientists from the French National
Institute for Public Health Surveillance found that nearly half of the 7,000 people newly infected
with HIV in the country in 2008 were gay men, and the incidence among homosexual men is 200
times higher than in the heterosexual population.11

10

Quoted from the article, Sexuality and the Law, a special feature Gays in Jamaica published in the Jamaica
Gleaner on July 21, 2001.
11
According to an article published on Reuters.com entitled, HIV Spread Out Of Control among French Gay Men

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Gay-rights lobbyists appealing for the buggery law to be repealed close their eyes to the
truth and still postulate the non sequitur viewpoint that repealing the buggery law is "the first
step" in the society creating a "supportive environment" for gays. So, education and constant
reminder of safe sex through the media is not the way to go, but repealing a law that would make
no difference really if gays (just like in France) still ignore common sense and education about
the proper health practices needed in a high-risk sexual behaviour.
The researcher believes that the criminal law generally known is based upon moral
principle. In a number of crimes, specifically the act of buggery, its function is simply to enforce
a moral principle and nothing else. The law, both criminal and civil, claims to be able to speak
about morality and immorality generally. Where does it get its authority to do this and how does
it settle the moral principles which it enforces? Undoubtedly, as a matter of history, it derived
both from Christian teaching. The researcher believes that the strict logician is right when he
says that the law can no longer rely on doctrines in which citizens are entitled to disbelieve. It is
necessary therefore to look for some other source.

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Recommendations
After conducting extensive research pertaining to the buggery law and its compatibility
with the Charter of Rights of Jamaica, the researcher has made the following recommendations.
The buggery law should be maintained as it is in the view that it is not in breach of the
Charter of Rights or any international conventions by which Jamaica is signed. The morality of
the country should not be disintegrated by the buggery law being repealed. The buggery law is
the Jamaican society's last bastion against the outright invasion of the gay lifestyle. That is why
the buggery law has now become a prime target for the gay movement.
The researcher also recommends that the Charter of Rights be amended to include
explicit provisions under which the privacy of the home may be breached, preferably specifying
the act of buggery. This would therefore dissipate such controversial arguments by human rights
lobby groups. It would further eliminate ambiguity of the law.
Lastly, the researcher recommends that the law should be partial in its practice; buggery
between man and woman should be given the same treatment as buggery between man and man.
Homosexuality is commonly the first element associated with buggery, as some have forgotten
that heterosexuality and bestiality are included in the Act. As the vagina is associated with the
female and the penis is associated with the male, the buttocks have no affiliated gender.
Therefore, the same treatment should be given for all situations.

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Bibliography
Case Law:
Dudgeon v UK. European Court of Human Rights. April 1981.
R v Brown. No. UKHL 7. House of Lords. 1994

Interview:
Richards, Shirley. Buggery Law in Jamaica Abigail Johnson. 4 March 2014.

Legal Statutes:
"Charter of Fundamental Rights and Freedoms." Jamaica, 2011. Section 13 (3) (j).
"The Offences against the Person Act." Jamaica, 1864. Sections 76, 77 and 79.
"European Convention on Human Rights." Europe, 1953. Articles 8 and 14.

Newspaper Articles:
Buckley, Byron. "Backing Down On Buggery? Some Personal Rights Can Be Sacrificed For
General Morality." The Jamaica Gleaner 25 December 2011.
Special Feature. "Sexuality and the Law." The Jamaica Gleaner 21 July 2001.
Tomlinson, Maurice. "A Tragic Case of Ignorance." The Jamaica Gleaner 11 December 2011.

Textbook(s):
Devlin, Patrick. The Enforcement of Morals. Liberty Fund, Incorporated, 2010, 1959.

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Web page article:

Kelland, Kate. "HIV spread "out of control" among French gay men." 8 September 2010.
Reuters.com. 6 March 2014 <http://www.reuters.com/article/2010/09/08/oukwd-uk-hivfrance-idAFTRE6875VE20100908>.

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