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Preparing for the inevitable
In 1999/2000, the then Panday administration made significant alterations to the Sexual Offences Act 1986. The big issue in 1986 was the question of “marital rape” in section 4.
The Chambers administration left out marital rape as an offence in the law. The Panday administration criminalised it.
However, one issue that was left intact from the late nineteenth and early twentieth centuries was the act of buggery that had been criminalised by the British colonial authorities.
In 1986, the Sexual Offences Act left that intact by repealing and replacing what was existing law with some modifications and there was really no debate about buggery as an offence when compared to the marital rape debate.
The 1999/2000 amendment process for the 1986 Sexual Offences Act ended with Act No 31 of 2000. Marital rape was recognised, while the penalty for buggery was increased from ten to 25 years. In those days there was little or no debate or dialogue about increasing this penalty.
Fast forward to today and the case brought by activist Jason Jones has been decided in an environment that is substantially different from 1986 or 2000.
However, there is evidence that one independent senator at that time (1999/2000) spoke out on the issue of buggery during the debate on the amendment. According to former independent senator Diana Mahabir-Wyatt in the debate on the amendment to the Sexual Offences Act 1986 on December 1, 1999, she said:
“When it comes to an adult and another adult, though, I would like to recommend that this be removed, consistent with what is happening in the laws throughout the Commonwealth, and be replaced by another section which would be 13(a), I suppose, to read: “An adult person who commits buggery on another adult person is guilty of grievous sexual assault where the act is committed in circumstances which would constitute a grievous sexual assault under section 4(a)….” Hansard, Senate, December 1, 1999, p 61).
In many respects, her proposed amendment back in 1999, that was not accepted then, may become relevant now having regard to the global trends that will naturally affect the way in which the judicial process is likely to emerge on this issue.
The State may need to equip itself from now to prepare for what is likely to become a final outcome in law and be ready for it.
The Mahabir-Wyatt amendment of 1999 may have relevance today. That is a matter for the Ministry of the Attorney General to consider, especially since the Attorney General himself has adopted the view that the State will appeal Justice Devindra Rampersad’s ruling because the Attorney General feels that it would be best for a full adjudication of this matter up to the level of the final court of appeal—the Privy Council.
Perhaps, the real reason for the appeal is a political strategy to permit the Government to buy political time based on a gamble that they will placate many of their supporters who are opposed to this court ruling with a perceived opposition to it that will not be finally determined until after the 2020 general election having regard to how slow the wheels of justice roll.
If the Government were in support of the outcome, they would not appeal. Mahabir-Wyatt had this to say in her 1999 contribution:
“Where it is consensual, I would hate to think that married couples consenting to sexual activity to which they happen to have no objection, would be regarded as criminals and sentenced to 25 years in jail...I think it is time we stop being hypocritical about this kind of thing and remove consensual adult sexual behaviour in private from penalties in the law, because I think to leave them in is simply hypocritical.” (p 62).
The debate has started and the clash will now be between religion and man-made progressive thought.
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