Recognizing the Right to Engage in Consensual Gay Intimacy: A Judicial Solution to Constitutionalize the Jamaican Sodomy Laws

Abstract

In this Essay I argue that in the absence of bold legislative action to repeal the Jamaican sodomy laws, the laws can be judicially modified to limit their application to the non-consensual sexual conduct, including sex with minors. This will ensure that non-consensual anal intercourse will continue to be a crime while at the same time protecting the fundamental right of gay men to engage in consensual intimacy. This modification can be achieved despite the existence of the savings law clause in section 13(2) (a) of the Charter of Fundamental Rights and Freedom. The Essay relies on the Roodal principle, recently adopted by the Caribbean Court of Justice in Nervais and McEwan, as well as a proper interpretation of section 13(2) of the Charter, to illustrate how to circumvent the debilitating effect of the savings law clause on judicial review of Jamaica’s sodomy laws.

Keywords: sodomy, savings law clause, human rights, Jamaica, decriminalisation, buggery