A lawyer representing the two gay men challenging the buggery and gross indecency laws in St. Vincent and the Grenadines (SVG) has noted that the legislation also captures certain sex acts among consenting heterosexual adults.
“The law also captures, which a lot of people don’t know, section 148 is that you can go to jail for five years, if, in the privacy of your own home, you are found performing oral sex on your wife or your wife is found performing oral sex on you,” Jomo Thomas said on WE-FM on Friday.
“Because these laws are from an earlier time, a time when … that was perceived to be a horrible thing. We know that in 21st century St. Vincent that the performance of oral sex on consenting adults is celebrated almost,” Thomas further said.
Section 148 of the Criminal Code says:
“Any person who, whether in public or private, commits any act of gross indecency with another person of the same sex, or procures or attempts to procure another person of the same sex to commit an act of gross indecency with him or her, is guilty of an offence and liable to imprisonment for five years.”
Thomas’ comments about oral sex came as he was responding to a question regarding the fact that the two men who have launched the legal challenge do not live in SVG.
Sean MacLeish, one of the litigants, a 53-year-old Vincentian, lives in the United States. The other claimant, Javin Johnson, 22, had successfully claimed asylum in the United Kingdom, in 2017, on humanitarian grounds.
Thomas said that the two men are still Vincentian citizens, noting that one does not lose citizenship by leaving the country.
He said the background of the lawsuit is two-fold: both MacLeish and Johnson are Vincentians and either or both of them might want to come back to SVG.
In the case of Johnson, he gained humanitarian status in England because of his lifestyle and the resulting assault to his dignity and his freedom of expression in SVG.
“They thought it was a well-founded fear and he was given humanitarian status in England,” Thomas said.
In the case of MacLeish, he visits SVG “but he has difficulties expressing himself as a homosexual male, expressing the dignity of himself as a human being who happens to be a homosexual male.
“He does not have the freedom of expression that a heterosexual has and that’s the basis of the challenge.
“But beyond these men, even if they don’t come back, all of us in St. Vincent know that there are other homosexual males or lesbians, people who practice lesbian lifestyles, because the law captures that as well,” Thomas said.
Thomas said he does not agree with the view that repealing the laws will open the door to other things.
“I have never met a man that I was physically attracted to but if you meet a man that you are physically attracted to, in my humble submission, that is your business. That is not my business.
“If you decide not to have children, that is your business; that is not my business. If you decide that you are not having children but you want to adopt children and raise them in a healthy, loving atmosphere that is your business it is not mine,” Thomas said, speaking directly to the host of the show.
“So this notion that we are opening the door to other things and we want to do this to our children… that’s the emotive point.”
He said some persons have argued that the buggery and gross indecency laws are hardly enforced.
He, however, said that a judge ruling on an English case has held that very existence of the legislation continuously and directly affects a person’s private life.
“Either he respects the law and refrain from engaging, even in private with a consenting male partner in prohibited acts to which he is disposed by reasons of his homosexual tendencies or he commits an act thereby becoming liable to criminal prosecution,” Thomas said, quoting the judge.
“And that is the challenge we are seeing here.”
He said that in a case in Fiji, the court held that a person engaging in buggery in the privacy of his or her home with another consenting person is “akin to an unapprehended felon in the privacy of his own home”.
“So those are the kind of things courts have looked at as it relates to privacy, as it relates to the dignity of the human being and has ruled….
“The claimants are invoking the Constitution to deal with an alleged statutory violation. This is not a challenge to remove anything from the Constitution. So, some people are under the misapprehension that we want to change the Constitution…
“The claimants are not trying to change the Constitution. What the claimants are trying to do is …, based on their protected constitutional rights, [is to] have a particular statutory clause removed from the law books.”