DECRIMINALIZATION AND BEYOND

Sometimes fear can bring people together especially if their experiences are similar.  Fear can also drive people apart.

The debate within the Caribbean regarding the decriminalization of prostitution and consensual anal intercourse has been ongoing on account of fear from people on various sides of the debate.  On the one hand, those who oppose the move to decriminalize prostitution and consensual anal intercourse, argue that if these are allowed the society will fall further into immorality and degradation.  Those who are in support argue that this will in some way help in the fight against HIV/AIDS.  The debate no doubt needs for both sides to objectively dialogue so that the wider public can at least be informed on the issues and perhaps alleviate some, if not all their fears.

Presently those who argue against decriminalization in particular do so mainly on religious grounds without any evidence to show how indeed society will fall deeper into degradation on account of what they consider to be sexual deviancy.  Citing scripture and saying this is against God’s law does not necessarily prove their arguments to be sound or valid; neither does it mean that the laws of the society need be one and the same as those which may be considered to be God’s law.

On the other hand, the other argument in favour of decriminalization, stands a better chance at showing real evidence to support its claim, yet, decriminalization should not be done simply as a means of dealing with a serious health crisis in the society.  In fact, there are a number of other issues that also have to be addressed regardless of what the final outcome is regarding decriminalization.  To this end, this essay will seek to address some of those issues in light of the ongoing debate on homosexuality and will be particularly addressing the argument in opposition to decriminalization.

One thing must be clear in people’s minds as to what is meant by the word homosexual.  A homosexual is a person who is sexually attracted or drawn to members of the same sex.  In fact it has to be stressed that ‘people do not choose their sexual orientation.  Nobody simply makes up his or her mind to become homosexual or a heterosexual.  Rather, at some point in their development, “discover” that they are sexually drawn to members of the same sex just as heterosexuals “discover” that they are physically attracted to members of the opposite sex’.   It is important that this is borne in mind because one of the issues preceding any talk about decriminalization or any other feelings we may have regarding homosexuals is that they not be treated as criminals but as human beings even if their lifestyle may seem to conflict with that of the rest of the society.  It is also necessary to distinguish between people who simply engage in homosexual behaviour and those who are homosexual on account of their orientation; engaging in homosexual acts does not automatically make someone homosexual.

Unfortunately, even some members of the church have not been kind to homosexuals and the many articles in the newspapers and other fora have shown that the many people who call themselves Christian have yet to understand the word “compassion” and in many ways come over as being very unchristian in their attitudes.  Each person, of course, has a right to have an opinion and that opinion of course has to be respected. 

There are a number of myths about homosexuals and homosexuality.  These only seek to increase fear and make people more homophobic.  There is no evidence to suggest that most homosexuals are attracted to children and want to have sexual relations with them in the same way that it is not true that all priests are pedophiles.  It is also not true that because of one’s homosexual orientation that this automatically means that one is unstable or promiscuous.   It would also be shortsighted to think that homosexuals cannot contribute positively to society and that by being homosexual in some way affects their abilities so much so that they are unable to perform in every aspect of the society’s life. It is time for society as a whole to recognize that a person’s sexual orientation does not necessarily debar them from even holding the highest office of the land or working in areas where one’s performance has nothing whatsoever to do with one’s sexual orientation or sex for that matter.

We can say then that society has really got itself in a bind and ‘is trapped in a vicious circle’ for ‘it’s largely intolerant reaction to homosexuality induces many homosexuals to remain invisible, and this invisibility in turn permits the stereotypical characteristics of homosexuals both to dominate our awareness and to cloud our judgments to such an extent that society’s fear of homosexuality is reinforced and it’s discriminatory attitude and behaviour maintained’.

The HIV/AIDS epidemic is real and there no immediate end to it in sight; everyone has to play a role in stemming the disease. It does not help us if we simply blame homosexuals for our situation or even suggest that this is God’s punishment to all of us for accepting this kind of behaviour in our society. It is unfortunate that this epidemic and the spreading of it are seen as the fault of the homosexuals and their lifestyle but AIDS/HIV has long moved beyond the realms of homosexuality as we know, is also very rampant among heterosexuals, so everyone in society is affected in one way or another.  We have to deal with the facts and work together to educate everyone in our society so that they can play their part in helping to stem the flow of the disease.  Much of this will come from our own conscious effort in the way we live our lives.  We have to make decisions about what we know to be right or wrong and this does not end at our sexual behaviour; we have to make choices for the whole of our life.

Some of these choices will include our sexual relationships and how we approach them.  Heterosexuals and homosexuals alike will have to decide how they will live out their sexual relationships.  How many sexual partners will they have?  What does practicing of safe sex mean if it means anything at all?  Our choices will be affected by our whole attitudes to sexuality and to sex in particular.  HIV/AIDS also challenges our understanding of sexuality and must continue to affect our choices so much so that we will make the right decisions about our sexual behaviour.  We may make some good choices as we will make some bad ones, but we have to make them, homosexuals included.  Our people also need to be educated so that they can understand the issues which can then help them make informed choices.  To this end, supporters and non-supporters of decriminalization have to work together because the issues go deeper than the question of making something legal or not; or it being sinful or not.

The argument against the decriminalization of consensual anal intercourse is based mainly on biblical principles but the concepts of homosexual and homosexuality as we know them were unknown at the time of the composition of the Bible and in particular of the Old Testament. In fact, these terms and concepts ‘presume an understanding of human sexuality that was possible only with the advent of modern psychological and sociological analysis.’ 

There are a number of scriptural passages which say something about homosexuality but these verses are relatively few.  In fact those passages dealing with this kind of relationship do not treat it as a ‘psychological orientation’ which is really a modern concept, but these passages are more concerned with ‘certain types of homosexual acts’.   These verses include: Leviticus 18:22; 20:13; Romans 1:26-27; 1Corinthians 6:9-10; 1Timothy 1: 9-10. 

The destruction of Sodom is often used as the main evidence against homosexuality.  Victor Paul Furnish points out that the reasons for Sodom’s destruction has been interpreted in different ways by various Old Testament and New Testament authors:

•    Jeremiah – Sodom’s sins were adultery, persistent lying and an unwillingness to repent (23:14)
•    Ezekiel – claims that the crimes of Sodom’s people were “pride, gluttony, arrogance [and] complacency;” moreover, the inhabitants of Sodom “never helped the poor and needy; they were proud and engaged in filthy practices” (16: 49-50).
•    Wisdom literature identifies the evils of Sodom as folly, insolence, and inhospitality (19: 13-14)
•    Ecclesiasticus – says simply that God “did not spare the people with whom Lot lived, whom he abhorred for their pride” (16:18).
•    Luke & Matthew – when Jesus refers to the city of Sodom, he does so within the context of his instruction to his disciples and apostles as he sends them out to preach the good news… Jesus tells his disciples how they are to react in response to how they are treated (Luke 10: 10-12; Matthew 10: 14-15).

In the writings of St. Paul from which many of our Christian principles come, his thinking on homosexual behaviour is useful but should not be misinterpreted and taken out of context. Like every other Bible author, Paul is writing within a particular context.  His Letters were written at a particular time and place for a particular community and he had specific concerns he wanted to address.  However, if in our interpretation of Paul’s writings we regard his moral instructions as ‘automatically applicable and binding in our times and circumstances, we are sure to end up with a good many requirements that are either irrelevant or, what is worse, clearly inappropriate’.

In his works, Paul dealt with a number of issues, and especially with sexual immorality.  But in Romans 1 where he addresses the issue of homosexuality he does not use it ‘to teach a code of sexual ethics; nor is it a passage of God’s judgment against those who are guilty of particular sins.  Rather, Paul is offering a diagnosis of the disordered human condition: he adduces the fact of widespread homosexual behaviour as evidence that human beings are indeed in rebellion against their creator.’   Within this context then, Paul, while he singles out homosexual intercourse he does so mainly to show how ‘human fallenness distorts God’s created order.  When human beings “exchange” these created roles for homosexual intercourse, they embody the spirited condition of those who have “exchanged the truth about God for a lie”.  Homosexual acts are not however, especially reprehensible sins; they are no worse that any of the other manifestations of human unrighteousness listed in the passage (Romans 1: 29-31) – no worse in principle than covetousness or gossip or disrespect for parents’;   and these sins are not criminalized and are in many ways, destructive to society.

Part of the problem with the argument against decriminalization and against homosexuality generally, is that people try to assert homosexuality as something worse than other sins when Paul himself does not make this distinction.  Some of the very people who are opposed to homosexuality allow for divorce which Jesus and scripture rejects outright.  For some reason people generally have negative feelings about sex, a gift from God which is good in itself but, on account of the way it has been used and abused is now seen as something bad.  What however makes homosexual behaviour any worse than any other indiscretions by heterosexuals? 

Scripture is not conclusive on its notion of homosexuality even if it may be prohibited as in the Levitical Holiness Code (18: 22; 20:13); remembering of course that the entire culture of the Israelites was determined by their religion and relationship to God and there was no real distinction between civil law and religious law.

Other arguments against homosexuality stem from the notion of what is natural or unnatural.  Homosexuality is unnatural, so the argument goes.  But the argument based on nature or on what is natural can be problematic. 

When we speak about something as “natural” or conforming to “natural law” or the “law of nature” we could mean either: ‘that it is in conformity with the descriptive laws of nature or that it is not artificial, that man has not imposed his will or his devices upon events or conditions as they exist or would have existed without such interferences’.

There are difficulties which arise from this argument regarding what is “natural” or not; what we may deem as “natural” may in fact be “unnatural”.  It cannot also mean that while something may be “natural” to go against this may also mean that one has done something wrong or evil.  It is not “natural” in a sense to wear clothes, because, by “nature” we were born without them, just like other animals.  It may be our “natural” inclination to retaliate when someone does something harmful or bad to us because we by “nature” we get angry; so to control that anger and to withhold retaliation we may have to act “unnaturally”. 

Further difficulties with this “nature” argument can be seen in the difference in the way that scientist regard the “laws of nature” and what is to be understood as the “laws of man”.  The scientist is concerned with what is recordable and observable, what we would call “descriptive” as these merely ‘describe the manner in which physical substances actually behave’.  The “laws of man” are prescriptive; they tell us how to behave.

It must be noted that manmade laws differ from natural laws but natural laws ‘are not passed by any legislation or group of legislators; they are not proclaimed or announced; they impose no obligation upon anyone or anything; their “violation” entails no penalty, and there is no reward for “following” them or “abiding by” them.  Human laws, being artificial conventions designed to exercise a degree of control over the natural inclinations and propensities of men, may in this sense be considered to be unnatural.’  In this sense homosexual behaviour cannot violate the laws of nature in the first sense or even in the second and in any case, one cannot be condemned for doing what is against nature, or what may not be natural; those who engage in homosexual behaviour are doing what comes natural to them, and even if it was something artificial as in other ways of sexually expressing one’s self, this is not in itself any ground for condemning both the behaviour or the person involved.  

But what does the laws of Barbados say about homosexual behaviour?  Actually the law only speaks to the question on buggery in which it states in Part One, Section 9 of the Sexual Offences Act (Revised 1992-3) that: “Any person who commits buggery is guilty of an offence and is liable on conviction on indictment to imprisonment for life”.    The laws of Barbados do not say anything about homosexuality but speak about buggery which is an act not limited to a particular sexual orientation and to which persons who perform this act are liable to severe punishment.  The debate then cannot be about homosexuality as an expression of one’s sexual orientation because this goes way beyond than just the physical.  There ought to be a difference and this should be reflected in the law as to those who engage in consensual anal sex and those who force others into such behaviour; that is where the real debate should be. This is what indeed has been done in England to reflect the difference between consensual and forced relations. And of course, our laws have their basis in English law. 

The Halsbury’s Law of England Vol II (I), 4th Ed. Reissue in its dealings with sexual offences (Nos. 505 – 509) makes clear not only what is unlawful but sets out the punishment for the varying degrees attributed to this offence, the maximum being life imprisonment.  In this act, age is important as well as the question of where the act is committed; even if the two men have attained the legal age, and both have given consent, performing this act in public is considered a punishable offence.  It is not the act that is punished but the place of it performance is what is judged.

The question then of anal sexual intercourse is dealt with under the caption of buggery in which it is stated that it is not an offence for two consenting men 21 years and over to perform such an act in private. 

Regarding what may be termed ‘grossed indecency’ again the law allows for private performance if this is done again between consenting men of the age of 21 and over. 

As regards homosexual acts, the law states (# 507) clearly that a homosexual act (in this case, buggery) done in private between two consenting adult who have attained the age of 21 is not an offence.

The Laws of England have been so adjusted to allow for certain types of sexual behaviour between people of the same sex which in some instances could be deemed unlawful if done out of context.  The law allows especially and importantly, for certain sex acts (homosexual acts included) to be done in private between consenting adults who have attained the necessary age. 

Perhaps this is a forward step, or some may even see it as a backward step; but maybe we need to take another look at our laws regarding anal sex and ask ourselves the question, can we really regulate people’s sexual behaviour not only when it is consensual but when it is done in the privacy of our own home?  To be sure, homosexual behaviour is merely one aspect of sexual expression; homosexuals and heterosexuals alike find many other ways to express their sexuality in the privacy of their own homes.

Whatever the outcome in this debate about the decriminalization of prostitution and certain homosexual behaviour, we must get to that point where we are able to respect each person’s beliefs or way of thinking even if that also comes into conflict with our own.  If we are to have order in society then this has to be regulated by the laws of the land and each of us must have some say in what those laws are.

We often say that our country is Christian forgetting the many other non-Christian religious groups which also make up our country and whose own beliefs sometimes conflict with that of the Christian.  This therefore calls for dialogue and cooperation between all the groups in trying to bring about some good end for the whole of the country.  Despite the dominance of one religious belief we cannot expect that all or any of our laws will conform mainly to that of the dominant religious society but what we do, we have to remember that whatever laws are in place every citizen or person residing in the country has to make a choice about keeping or not keeping these laws; to choose to act contrary to the laws of the land can lead to prosecution.  Still, homosexual acts especially between consenting adults may be more a question of morality than legality.  Even if something is immoral it does not necessarily follow that it should also be illegal as the converse is also true, something that is forbidden by law need not also be immoral even though in some circumstances, immorality and illegality may coincide.  Being a homosexual or heterosexual is not a question of morality or legality for that matter.

The suggestion that the decriminalization of certain homosexual behaviours will destroy the society is without merit and based mainly on fear; there are far worse “crimes” being perpetrated and even by people who are opposed to decriminalization.  In the same way that society determined that certain acts are unlawful, those same laws could be changed to reflect a more enlightened society.  Some of the very people who cry out against homosexuality have no difficulty in insisting that the death penalty should be imposed on murderers; there seems to be some double standard here.  And some of those same people, while not accepting homosexuals would condone the use of condoms or abortion, and some have no difficulty in the acceptance of divorce.

Whatever decisions are made about decriminalizing certain homosexual acts this has to be preceded by a change of thinking on the part of most people who have given in to the many myths about homosexuals.  This will not happen overnight but a start must be made if we are to simply appreciate people who may seem different from us.  Even if we may not agree with their lifestyle, it does not mean we cannot accept them as other human beings.  And it surely does not mean that they cannot function and participate fully in the life of the society.

Perhaps the time has come to decriminalize those homosexual acts that have kept people in fear and from fully living their lives in society in an honest and open way.  Still it should not be decriminalized as a means of prevention or a cure to HIV/AIDS but really as something that is just.  It has been suggested that ‘in countries or states where homogenital acts are prohibited by law, a strong case may be made for the decriminalization of such acts, at least when there are performed in private by consenting adults.  Apart from statutes needed to protect minors from exploitation and abuse, to maintain public decency, and to regulate prostitution, laws forbidding voluntary and private acts of oral/anal sex by members of the same sex (as well as the opposite) should be repealed because they do more harm than good in the public order’.   In the process, neither homosexuality nor heterosexuality can come under any lawful considerations.  Simply being a homosexual cannot be a crime, but homosexual acts can be if it determined to be so by law.  A homosexual has some of the same rights and privileges as every other member of the society and they do not give up those rights on account of their orientation. 

History will remind us of the many struggles various people have gone through to be afforded their rights in society.  Women have had their struggle and in fact continue to fight against being discriminated on account of their sex.  Black people still in many ways have to fight against the stigma of racism.  If we determine that people who are homosexual are different and in some sense, live an “unnatural” lifestyle, then who is to say that people who choose to wear their hair “unnaturally” through perms and straightening or braiding, or those who may dress differently; the elderly or the physically and mentally challenged; or perhaps those afflicted with HIV/AIDS, would not be discriminated on account of their “difference”? Apart from lacking compassion, we can also add discrimination and being judgmental of people because we believe that they are living sinful and immoral lives; our actions however, amount to showing that we are no better than the very people we are condemning. 

Whatever is decided has to be for the good of every member of the society.  If we persist in fear because of what we do not know or understand and we never seek to try at least to know, then we do an injustice to ourselves and the rest of society as we continue to wallow in our narrow-minded ways.   Perhaps there will be dialogue between the relevant parties and this would alleviate some, if not all of the fears there may be.  In any case, let us be more tolerant of those who are different from us and seek to accept people for who they are, not simply on account of what they do or don’t do.