It has generally been seen that the “good” person will do what is lawful.

But not long before

people will recognize the difference between what is actually legal, or legally right

according to the political authorities and what should be legal. What should be legal rarely

corresponds with what is really right or just, that is, what we would call morally right, for

example, the distinction between what is legally or conventionally right and what is

naturally right is Sometimes expressed as a conflict between what the gods command

(morally right) and what the political authorities command (legally right). In recent times a

major problem has arisen where the leaders in politics, society, media, and even in religious

organisations, have turned their backs on the traditional conceptions of right and wrong and

the laws passed by Parliament have undermined morality.

The existence of laws serve to defend basic values, such as laws against murder, rape, fraud,

bribery and others, prove that law and morality can work hand in hand. Laws can state what

obvious offenses count as wrong and therefore punishable and although the courts do not always

ignore a person's intention or state of mind, the law cannot generally govern, in a direct way a

person’s desires.

There exists a relationship between law and morality whereby Laws govern conduct to a certain

extent through fear of punishment. Morality, when internalized, it has become habit or second

nature and governs conduct without compulsion. The righteous person does the appropriate thing

because it is the right or noble thing to do and morality can influence the law in the sense that it

can provide the reason for making entire groups of immoral actions illegal.
 1
Lord Hobhouse in R v Hinks was particularly concerned by the prospect of a criminal

conviction based upon conduct. He stated ‘the reasoning of the Court of Appeal depends upon

the disturbing acceptance that a criminal conviction and the imposition of custodial sanctions

may be based upon conduct which involves no inherent illegality and may only be capable of

being criticised on grounds of lack of morality. This approach itself raises fundamental

questions. An essential function of the criminal law is to define the boundary between what

conduct is criminal and what merely immoral.’

Criminal Law is seen as a body of rules and statute that defines conduct prohibited by the

government because it is harmful and threatens public safety and welfare. Punishment it

established to be imposed as the charge for such criminal acts.

Legal Positivists have been in pursuit of a value-free explanation of the law and it has been

countered by natural lawyer’s claim that it neglects the very essence of law and morality. John.

M Finnis2 an Australian legal scholar and philosopher specialized in the philosophy of law,

stated ‘the act of positing law...can and should be guided by “moral” principles and rules; that

those moral norms are a matter of objective reasonableness, not of whim, convention, or mere

“decision”. 3

Hobhouse further went on to state “to treat otherwise lawful conduct as criminal merely because

it is open to such disapprobation would be contrary to principle and open to the objection that it

1
UK HL5, 2000 UK 53
2
(Born 1940), A Professor of Law at University College, Oxford and at the University of Notre Dame,
teaching jurisprudence, political theory, and constitutional law.
3
Natural Law and Natural Rights (Oxford, Clarendon Press, 1980)
fails to achieve the objective and transparent certainly required of the criminal law by the

principles basic in human rights.”4

John Mills in his 1859 essay ‘On Liberty’ states “the only purpose for which power can

rightfully be exercised over any member of a civilized community against his will is to prevent

harm from others.” While the Wolfenden Reports regarded homosexual activity between

consenting adults as immoral, Mills argued that it is morally permissible, that unless the activity

of consenting adults is conducted in public, and offends others, or else is an activity that harms

others who have not consented to it, it is not fit for moral condemnation, and all the more reason

it cannot be criminalized.

Buggery or sodomy is anal intercourse by a man with another man or a woman, or bestiality by a

man or a woman.5 As well as it is seen as a criminal offense of anal or oral copulation by

penetration of the male organ into the anus or mouth of another person of either sex or

copulation between members of either sex with an animal. Buggery is historically referred to as a

"crime against nature." It is an offense under both Common Law and Statutes and although

prosecution for buggery is rare, the punishment upon conviction can be a fine, imprisonment, or

both.

Jamaican laws like most of the English speaking Caribbean prohibits sex between men and is

provided for under The Offences Against the Persons Act of Jamaica 6 sections 76 states

“Whosoever shall be convicted of the abominable crime of buggery, committed either with

4
R v Hinks [2000] 4 ALL ER 835
5
Oxford Dictionary of Law
6
OAPA 1864
mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term

not exceeding ten years.” Section 79 of the same act punishes any act of physical intimacy

between men in public or private whereby it states “Any male person who, in public or private,

commits, or is a party to the commission of, or procures or attempts to procure the commission

by any male person of, any act of gross indecency with another male person, shall be guilty of a

misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be

imprisoned for term not exceeding two years, with or without hard labour.”

"Gross indecency" is not defined, but has been interpreted to include male homosexual conduct

between consenting adults in private. The rights of lesbians and gays in Jamaica are mostly

concerned with the prohibition of sexual acts between men, and sexual absence between women

is however not referred to in the law.

Kristin M. Perry v Arnold Schwarzenegger is a federal lawsuit filed in the United States District

Court for the Northern District of California challenging the

federal constitutionality of Proposition 8,7 a 2008 ballot initiative that amended the California

Constitution to provide that "only marriage between a man and a woman is valid or recognized

in California." In effect, it prohibited the recognition of same-sex marriages performed on or

after November 5, 2008 and this lawsuit sought to strike down Proposition 8 as unconstitutional.

On August 4, 2010, Chief Judge Vaughn Walker ruled that Proposition 8 violated the Due

Process and Equal Protection Clauses of the Fourteenth Amendment8 to the United States

Constitution.
7
California Marriage Protection Act, constitutional amendment passed in the November 2008 state elections.
8
Adopted 1868 as one of the Reconstruction Amendments.
Judge Vaughn R. Walker's conclusion was, "Proposition 8 fails to advance any rational basis

in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows

Proposition 8 does nothing more than enshrine in the California Constitution the notion that

opposite sex couples are superior to same-sex couples. Because California has no interest in

discriminating against gay men and lesbians, and because Proposition 8 prevents California from

fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes

that Proposition 8 is unconstitutional.

Under section 3 of the Jamaican Marriage Act 9 it states “if the parties to any marriage are within

the prohibited degrees of consanguinity of affinity according to the law of England from time to

time in force, the marriage shall be void.

Human Rights groups have deemed Jamaica to be the most homophobic place on earth, possibly

due to fact of Homosexuality being such a major issue in Jamaica, where for years the statistics

on attacks of homosexuals on the island has risen, however with no hate crime bill or police

enforcement, as many of them are in agreement with it and won’t protect them from the mobs, or

violence against them, but they incite the homophobic rage when these attacks occur, and no

solutions have been made.

9
The Marriage Act 1897
In 2005, a gay man was harassed at the beach, and a mob pursued, to avoid the homophobic

wrath of the mob he ran into the sea and drowned and In 2007, a pastor’s church was attacked by

an angry mob on Easter Sunday because it was believed that people accused of being

homosexuals were at a funeral service he performed earlier in the week. While in November

2008, Rev. Richard Johnson, one of the leading Anglican priests on the island, was found nude

and stabbed 25 times, in the church house, because he was thought to be gay.

10
Worldwide human rights group, Amnesty International (AI)  also believes the hate crime

theory. The profile as a gay man and advocate of homosexual rights makes them a target for

those with homophobic views and the primary motivation for the murder being their hatred of

homosexuals. Amnesty International considers that the existence of such laws violate the

prohibition against discrimination, the right to privacy and the right to equal protection of the law

provided for in Articles 2(1), 17 and 26 of the International Covenant for Civil and Political

Rights which Jamaica is a party of.

Jamaican Prime Minister (PM) Bruce Golding has said the country’s parliament will not

recognize same-sex marriage while he was in power and has made statements in regard to the

proposed amendments of the constitution to lay out the extent of the rights and freedoms for

Jamaicans, whereby he said “I make no apology in saying decisively and emphatically that the

government of Jamaica remains irrevocably opposed to the recognition, legitimization or

acceptance of same-sex marriages or same-sex unions,”. PM Golding told BBC in 2007 that he

10
(Founded in London in 196), mission is "to conduct research and generate action to prevent and end
grave abuses of human rights and to demand justice for those whose rights have been violated."
would not allow gays to sit in his cabinet and that he doesn’t believe it is the governments

business to “interfere in what two consenting adults chose to do within their own protected

privacy.” He went on to say “I will not accept it that homosexuality must be accepted as a

legitimate form of behaviour or the equivalent of marriage.”

The Wolfenden Report11, named after Lord Wolfenden, was a response to prior requests in

investigating the law in relation to homosexuality following numerous high profile arrests and a

significant increase in the number of prosecution cases for sodomy, gross indecency and indecent

assault. A 14 person committee was appointed to investigate the late relating to homosexual

offences and prostitution. Section 13 of the Committee Report stated "the function of the

criminal law... is to preserve public order and decency, to protect the citizens from what is

offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of

others...”

The Committee proposed certain changes in the law whereby it recommended that "homosexual

behaviour between consenting adults in private should no longer be a criminal offence", and it

recommended that prostitution not be made a criminal offence. As it stated "there must remain a

realm of private morality and immorality which is, in brief and crude terms, not the law's

business. To say this is not to condone or encourage private immorality." The report maintained

that consensual homosexual doings carried out in private is immoral. It was recommended that

the age of consent be 21 years as opposed to 18 years for marriage and 16 for consensual

heterosexual activity.
11
(The Report of the Departmental Committee on Homosexual Offences and Prostitution) 1957
H. L. A. Hart12 supported the report's opposing view (derived from John Stuart Mill) that the law

had no business interfering with private acts that harmed nobody. Lord Devlin argued in support

of James Fitzjames Stephen13 that popular morality should be allowed to influence lawmaking,

and that even private acts should be subject to legal sanction if they were held to be morally

unacceptable by the "reasonable man" or “ordinary member of society”, in order to preserve the

moral fabric of society. Devlin argued that a society's existence depends on the maintenance of

shared political and moral values. Violation of the shared morality loosens one of the bonds that

hold a society together and thereby threatens it with disintegration. In Devlin’s view,

homosexual acts were a threat to society’s morality and he maintained that legal intervention was

essential to ensure both individual and collective survival, and to prevent social disintegration

due to a loss of social unity.

Homosexuality between males is a criminal offence, but between females it is not mentioned

under law. Some people genuinely believe that homosexuality is neither immoral nor unnatural

and others question the freedom of choice and action one has that is offered for them to decide

what is moral and immoral.

No society is without intolerance, offence, or disgust; they are the factors behind the moral law,

it can be argued that if they or something like them are not present, the feelings of society cannot

be important enough to deprive the individual of freedom of choice. For example many persons

12
Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965).
13
Sir James Fitzjames Stephen (3 March 1829 - 11 March 1894) was an English lawyer, judge and writer.
today are disgusted by the thought of deliberate cruelty to animals. No one proposes to relegate

that or any other form of cruelty to the realm of private morality or to allow it to be practiced in

public or in private.

Ultimately one can decide whether or not they consider homosexuality so immoral and against

everything that its presence in society is offensive. If that is the general consensus then the

society and the law could be allowed to by all possible means rid themselves of it. If however

persons don’t feel so strongly about it, that if confined, it is ok, which is often what is heard by

persons when their views are questioned on the issue of homosexuality. Many say that it’s the

persons business and they don’t care, once they don’t bring it to them or make advances or

anything of the sort, they are ok, not to say the accept it, but what you want to do in the privacy

of your bedrooms and the confines of your space is your business and that it need not be brought

in the public, likewise for many other acts. Realistically speaking we as humans commit various

acts which may be viewed by one another as moral or immoral, Fornication is seen as immoral

by many and if it were to be under law (criminal), then many persons would be going against

‘the law’.

It had been viewed that criminal law exists for the protection of individuals, with that fornication

in private between consenting adults is not within the law. But the real view is that the law exists

for the protection of society. It does not release its function by protecting the individual from

injury, annoyance, corruption, and exploitation, it must also protect also the institutions and the

political and moral ideas which people cannot live together. Society cannot live without morals

and its morals are those standards of conduct which the reasonable man approves.