Sodomy Halts Debates on Sexual Offences Bill
Source: All Africa 04/12/2007
Port Louis, Apr 12, 2007 (L'Express/All Africa Global Media via COMTEX) --
Political debates on the Sexual Offences Bill - a piece of draft legislation that deals mainly with the stiffening of laws in cases of rape and other sexual offences - have stumbled upon the term "sodomy."
Not that the word is mentioned in this remarkable piece of legislation that in actual fact seeks to depenalize the act of sodomy. The bill is remarkable in the sense that the word sodomy is not used at all. We know the sexual act will be rendered legal - when the bill is voted - by the fact that "penetration of the penis" in the "anus without consent" will constitute a rape that will be subject to penal servitude not exceeding 45 years. At the end of the bill, the repeal of section 249 of the Criminal Code is provided for. As it stands now, section 249 provides that sodomy and bestiality are crimes punishable by a penal servitude of 5 years.
MMM leader Paul Berenger has not yet expressed himself on the matter and MSM leader Pravind Jugnauth has already at the outset opposed the depenalization of consensual sodomy, qualifying it as "immoral" and saying that Government's move was "a telltale sign of a society that was losing its values". Even within the majority alliance, the matter of sodomy is causing a rift and has prevented any dispassionate debate on the more important matter of harsher sentences for rapists.
The main criticisms against the depenalization of sodomy are that it is "immoral."The main arguments for it are that the right to practise sodomy is part of the broader constitutional right to sexual privacy. The debate in Mauritius is, however, slightly different.
In actual fact, the precise sexual acts meant by the term sodomy are rarely spelled out in the law but is typically understood by courts to include any sexual act, which does not lead to procreation. Furthermore, sodomy has many synonyms: buggery, crime against nature, unnatural act and deviant sexual intercourse.
Respect for individual private lives
While, in theory, this may include heterosexual oral sex, anal sex, masturbation and bestiality, in practice and - in general - such laws are primarily enforced against sex between men. Historians, however, dispute the reason for the emergence of such laws but they have roots in antiquity and are linked to religious proscriptions against certain sexual acts.
Contemporary supporters of sodomy laws argue that there are additional reasons for retaining them. They include public health concerns about anal sex or concerns that legalisation of homosexuality will lead to a declining population.
But more and more around the world, courts are striking down sodomy laws in decisions that gay rights supporters the world over have hailed as "historic." As an example, Justice Anthony Kennedy of the US Supreme Court wrote, "The petitioners are entitled to respect for their private lives. ( ) The State cannot demean their existence or control their destiny by making their private sexual conduct a crime". The petitioners in this case were homosexuals.
As mentioned earlier, the situation in Mauritius is slightly different. As a general rule, men homosexuals rarely publicise the fact that their sexual behaviour is in actual fact a crime according to Mauritian laws. And the police do not make it a regular practice of arresting homosexuals because they practise sodomy in the privacy of their homes. Sodomy between adults of different sex is also practised on a regular basis in Mauritius as elsewhere. When it is consensual, there is no question of a crime having been committed because it cannot be proved.
45 years behind bars
So the move by Government is purely a technical one. Attorney General Rama Valayden, aware of this absurdity in our laws, has chosen to justify Government's decision by saying that many women, because they have to find fault with their husbands whom they wish to divorce, often say the latter have engaged in sodomy. Not many lawyers agree but this is really beside the point.
After the proclamation of the Sexual Offences Act, nothing will have changed in the sexual behaviour of consenting adults. But when a man rapes another man or has non-consensual anal sex with a woman, instead of the actual five years, the rapist will be liable to a maximum of 45 years behind bars. To all intents and purposes, this is about the only change that the depenalization of sodomy will bring in the country.
The debate, however, will be anything but rational because in it will be mixed a large dose of political demagogy, religious zealousness and - let's face it - much hypocrisy.