Vivian A. Gray Jr., Contributor
Scene at the Tower Street Adult Correctional Centre in 1997, where a riot of inmates took place after officials advocated distribution of condoms in prisons. Several persons were killed. - File
I FIND it extraordinary that we live in a country where those of us who know better allow policy makers, who are light years behind in thought and knowledge, to use their own ignorance and narrow-mindedness to overshadow urgently needed policy and legal reforms.
I speak specifically in this instance of two recent events which have dominated the headlines. First, our Parliament is debating an amendment to our Constitution to provide for a Charter of Rights and Freedoms. It seems, however, that if the majority of the committee members examining the bill and certain other interest groups have their way, this so-called Charter of Rights and Freedoms will do nothing more than enshrine discrimination in our Constitution.
Secondly, despite clear evidence to the contrary, the nation guided by these same policy makers prefer to deny the reality that HIV and AIDS exist in our prisons, and that sex between men (whether consensual or
otherwise) also takes place in our prisons.
Given Sections 76 and 79 of the Offences Against the Person Act which criminalises buggery and sexual intimacy between men, it is understandable that allowing access to condoms in prisons might reasonably be seen as an encouragement of homosexuality. As such, the prison authorities are entitled to avoid a policy that might give this impression.
OTHER USES
In addition, condoms have uses other than those for which they were designed, and therefore, some level of control of condoms as a commodity should be the exclusive prerogative of the prison authorities.
However, there is a broader issue involved the issue of public health. The mere fact that a person asserts that he wants a condom does not mean that he is homosexual, nor does it mean that he is necessarily intending to engage in penetrative or other dangerous sexual activity, nor does it necessarily mean that he is in truth a consenting party to whatever activity is anticipated. Therefore, if we accept that HIV exists in our prisons and that prisoners will some day be
readmitted into the general
population, then in an era where HIV is the second leading cause of death for both men and women in Jamaica, there must be some other policy in place to enable access to condoms for "genuine health reasons", and this question is best left to health professionals.
It is at this juncture that one would expect to see some leadership from our policy makers and elected representatives. Indeed, one expects a minister of health to stand firmly behind any position he has taken on a public health issue. Instead, all we hear are cowardly statements and excuses, espoused by those who use their elected positions to legislate, not according to what is in the best interest of the public, but according to their own personal narrow-mindedness and bias.
MORAL BANDWAGON
The morally upright hypocrites in the Jamaican society have used the call for access to condoms in prisons to mask their own blameworthiness puffing themselves up as paragons of virtue pretending that they are without sin. We hear sermons about brimstone, fire, Sodom and Gomorrah; as if to suggest that sexual intimacy between men was the only event taking place in Sodom and Gomorrah.
As the Bible tells it, drunkenness (the present-day use of narcotics, including ganja); all night partying (present-day Passa Passa), revelry (an entire season of Carnival) all around lasciviousness, greed, envy, murder all the things present in modern day Jamaica were the reasons for the destruction of Sodom and Gomorrah.
Yet, we turn a blind eye to all these other morally reprehensible behaviour, and behave as if men who have sex with men are the only ones engaged in immoral behaviour, and further, that the call for access to condoms in prisons is the greatest of all sins.
In Jamaica, women bed, give open support to and bear children for men who are notorious murderers of women and children. Yet, these same women, their families and friends, are quick to jump on their moral high horses and ride a bandwagon which seeks to deny prisoners the right to access condoms so that they can protect themselves against the deadly HIV disease.
I ask you, which act is morally more reprehensible?
Even if it is true that men who have sex with men are engaged in an act of sin, according to Christian philosophy, the duty of the state is not, in a pluralistic society such as Jamaica, to legislate conformity with any single religion. The only justification proffered to date for the buggery law is that "the Bible seh so."
LAW EVOLVING
Contrary to what some would have us believe, the law and the way in which it is realised is continuously evolving and must be continuously evaluated. The function of the law, the organisation of society and the provision of a stable context for dealings within that society require interests being weighed all the time, in order to render legislation useful for promoting those interests.
The question which arises then, is this: what useful purpose do Sections 76 and 79 of the Offences Against the Person Act serve in a 2006 Jamaica?
I cannot imagine that there have ever been any successful prosecutions in Jamaica for consensual buggery. Usually, the police indict men who have sex with men for buggery but the outcome of the case in favour of the state is never because of any physical or credible evidence. Rather, there is a certain 'horror' in the charge itself. It is standing in the dock in the face of a judge, police and sometimes other litigants where it is known that you are charged as a homosexual.
Add to this the fact that the press will publish the names of men charged with consensual buggery and gross indecency, shaming them and putting them at risk of physical injury. This often causes a defendant to plead guilty to the lesser charge of gross indecency, to abbreviate the embarrassment.
Unfortunately, the call for access to condoms by prisoners has been lost in the cacophony about erosion of morals and the fact that it would be contrary to the Offences Against the Persons Act. Those astride their high moral horses tend to disregard the fact that a policy allowing access to condoms in prisons would be to preserve health, particularly in light of the risk of HIV transmission, and not to encourage homosexuality.
WHAT PRICE WILL GOV'T PAY?
The cowardly policy makers would be well advised, however, that not providing condoms and simply burying their heads in the sand puts the Government and its agents at legal risk, since anyone who contracts a sexually transmitted infection in prison may be able to maintain a successful action in negligence against the state, for breach of duty, in just the same way as he would be able to sue a doctor for improper medical attention.
What makes such a lawsuit even more likely to succeed is that time and again policy
makers and prison officials have been warned that there is a known risk of HIV-infection among the prison population, and they have done nothing remotely significant to protect the prison population.
Vivian A. Gray Jr. is the advocacy officer of the National AIDS Committee. Comments may be sent by email to viviangrayjr@yahoo.com
