We are all concerned by the Sexual Offences Bill (SOB). That is why we have to examine the issue from several angles so as to situate the correct stand as clearly as possible on the issue of implementing the Sexual Offences Bill. Attention is drawn to the fact that, although the Bill aims at combating sexual criminality, it does also entail the legalization of sodomy between consenting adults. Before considering its legalization it would be prudent to have a profound outlook of its impact on our Mauritian society.
We believe that, for every issue, the following three aspects have to be considered before its endorsement in any society:
1. The Socio-religious impact
2. The Legal impact
3. The Medical impact.
For that purpose, we have contracted three professionals in these three respective fields in order to carry out a proper in depth research on the implementation of the ‘Sexual Offences Bill’ in the Mauritian society.
We have requested these three respected professionals to submit their views on the matter:
(a). A Mufti or Muslim Jurist on the socio-religious aspect.
(b). A well-known lawyer for the legal aspect.
(c). An internationally-known doctor on the medical and scientific aspect.
A. The Socio-religious Aspect
In the world of the creatures, man is distinguished from mammals and amphibians thanks to his human qualities. His intellect faculty drives him to behave in a noble manner in his society. Good deeds that benefit others, mutual respect with his own kind, the spirit of service, honesty and good communication make of him what we qualify as ‘human’. Allah Ta`ala has stated: “Follow the nature on which Allah has created the human” (Surah 30 verse 30). On the other hand, adultery, homosexuality and sodomy are such acts that do not conform to the human standard. Islam, conceived to promote the nature of man, certainly condemns such ignominious acts. Allah Ta`ala declares: ”And do not get near fornication. In truth, it is a turpitude and what a bad path! ” (Surah 17 Verse 32) ”And Lut (AS.) when he tells his people:”Do You commit lewdness such as no people in creation (ever) committed before you? That you appease your carnal desires with men instead of women! You are indeed a people transgressing beyond bounds.” (Surah 7 Verses 80-81).
The term SODOMY is derived from the name of the SODOM, a city in ancient Palestine. The Bible tells how the people of Sodom perished because of their sin of sodomy and homosexuality. The Epistle of Jude condemned immoral aspects of Sodom’s sins: ” …just ace Sodom and Gomorrah and the surrounding cities, which likewise indulged in sexual immorality and pursued unnatural wants, have been made an example by undergoing punishment of eternal fire ” (V7, English Standard Version). The Old and the New Testaments both condemn to death those who practice sodomy. “If a man also lies with man, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; they have forfeited their lives” (Leviticus 20:13). The books of Hinduism also forbid the intimate relation in impure anus: Ancient Hindu law books, from the first century onwards, categorize ayoni (non – vaginal sex) as impure.
Judaism condemns sexual acts that are unnatural very severely: According to Torah (Law of God revealed to Moses (AS)), acts of sodomy, homosexual relationships and adultery, especially when the adults are consenting, incur the death penalty. ”Cursed are those who disobey and blessed are those who uphold the strictures against idolatry, cursing related ones, moving one’s neighbours’ landmarks… and committing the various sexual crimes of adultery, incest, and sodomy” (Deuteronomy 27:15-27).
Sodomy is a very shameful act that even in legal terms is referred to as ”any sexual act which does not lead to procreation, a crime against nature, an unnatural act, deviant sexual intercourse. ” Islam condemns it severely: the holy prophet Muhammad (S.A.W.) said: ”Woe is the one that penetrates his wife by the anus. ” (Abu Dawood). According to a hadith of Tirmizi, the one who practices sodomy is not worthy of faith. Therefore, all religions and the sacred texts are unanimous to say that sodomy is an anomalous and barbarian act. Biologically, the woman ovulates every month waiting the spermatozoon to fertilize it by the way of the vagina, not the anus. And that is the only natural way for man to perpetuate his progeny.
The human body is provided with a certain number of orifices each of which has a definite function to perform in the general physiology of man. Let us see together how each of these orifices function. The ears have an objective to capture sounds, noises, voices so that man may hear and recognize the nature of the sounds, etc. The nose is provided with two nostrils whose main function is to breathe air and also to smell odours, perfumes, etc.
The mouth is a big cavity which enables intake of food and drink, speech, cry, shout, etc. And finally we have orifices in our genitals: in man, his orifice enables the emission of urine and sperm; in woman, it enables the emission of urine and blood from menses. The genitals in both man and woman are the only place where a couple can engage in sexual relations that are licit and lead to human reproduction. The anus is situated at the end of the rectum and its sole and unique function is to expel faeces from the body. A human being, endowed with intellect by his Creator, needs to respect the function of each part of his body and utilise it in the proper manner as dictated by nature so that he may lead a healthy and well-ordered life.
Research in the field of health also shows that AIDS and a lot of sexual complications are due to the practice of sodomy, an unnatural act. Objects of divine anger and the woes of the prophets, some sexually-transmissible illnesses are the results of sodomy. By legalizing the practice of sodomy, one may well expect a calamity of the type inflicted upon the cities of Sodom Gomorrha long ago!
Our small Island is multicultural land assents its popularity thanks to its cultural values. Under the Mauritian Constitution, the religious practices of the populations are legally recognized. The concept of best loser (BLS) and religious nuptials are clear examples of this fact. The Equal Opportunity Bill aims at bringing more standardization to this concept. Hence, viewed strictly in the Mauritian context, sodomy as a practice should be banned. It is a clear violation of religious values. The Sexual Offences Bill (SOB) is therefore a misfit in the Republic, especially if it includes the legalization of sodomy.
B. The Legal Aspect
It is my honest opinion that the Sexual Offences Bill (SOB) should be rewritten, redrafted and reviewed in the light of our multi-ethnic and multi-religious country, Mauritius. If votes are cast in favour of the SOB (Bill No 6 of 2007) as it currently reads, it would mean putting into execution or practice a sense of values alien to Mauritians as a whole.
The legislators have too widely interpreted the issue of consent which is termed according to them as a “sufficient defense”. It is dangerous, not to say terrifying, to fathom the freedom and wantonness wills which the legislators have drafted this proposed law. At the very start, in the “Explanatory Memorandum”, the object of the Bill is explained and one of its objects is to cover various acts of sexual perversions committed by offenders. When reading the body of the proposed law, one realizes the extent of the perversity of this legislation.
Section 9 of the proposed law causes the more worry. However, perverse and twisted minds might very well adopt this section of the law as their new gospel as it gives unfettered freedom to potential sexual offenders to, for instance under s.9 (3) (c), penetrate “a third person’s vagina or anus” and then claim as a defense that they have reasonable cause to believe that the victim had consented to the activity. Upon what belief or reasoning does a “reasonable cause to believe” rest or can be explained in civilized terms remains very questionable. Nothing would prevent a sexual offender from interpreting a potential victim’s act of kindness or even a mere smile as an invitation or reasonable belief for consenting to engage in a perverse sexual act.
More offensive to all creeds and religions of Mauritius is the proposed law’s definition of a sexual activity which is made to include the act of sodomy. Are the legislators trying to be more in tune with the current trend in Western Societies where the despicable act of sodomizing another human being is considered as acceptable and therefore upholding it as a part of the civil liberties of modern Mauritius?
The legislators might argue that the current law as it reads contravenes International Law. There are seven core international treaties on Human Rights; the main two are the International Convenant on Civil and Political Rights (ICCPR) and the International Convenant on Economic, Social, and Cultural Rights (ICESCR). In the landmark 1994 case of Toonen v/s Australia, the United Nations Humans Rights Committee which monitors states’ compliance with the ICCPR held that sexual orientation should be understood to be a status protected from discrimination under articles 2 and 26 of the African charter on human and Peoples’ Rights. Articles 2 states: “Every individual shall be entitled to the enjoyment of the right and freedoms recognized and guaranteed in the present charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status”. And its article 26 prescribes that “Every individual shall have the duty to respect and consider his fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance”. In this view, states cannot abridge the enjoyment of Human Rights on the basis of sexual orientation. The United Nations Human Rights Committee has since urged states not only to repeal laws criminalizing homosexuality but also to enshrine the prohibition of discrimination based on sexual orientation into their constitution or other fundamental laws.
The question remains whether Mauritius is ready to trade the plurality and diversity of its religious beliefs and ancestral values (which all condemn the act of sodomy described in the Sexual Offences Bill), for a more modern International approach and perspective of promulgating sexual deviance in the name of Human Rights?
All the communities and religions of Mauritius make up our Government. If Mauritians are to respect the Government as an instrument of justice then that involves respecting the Government’s contention that each citizen has a voice in the Government. Certain privileges are given to each person residing in Mauritius, including freedom of speech and a right to dissent, and citizens are given the right to vote to affect who will be in decision-making positions. Since we can affect how that justice will be carried out, it’s our responsibility to participate in whatever way seems best to influence this country in what is just, righteous and true.
C. The Medical Aspect
The anus / rectum is one of the dirtiest organs of the human body. In terms of bacteria, it harbors one of the highest concentrations in the body. When the male organ is introduced in the rectum, the urethra (male passage of urine) is quickly contaminated with the millions of bacteria present in the rectum. Result: Infection of Urethra which can lead further to infection of Bladder & ultimately Kidneys. Human Papilloma Virus (HPU) – now known to be responsible for cancer of cervix in women can be transmitted during the acts of sodomy leading to cancer of anus & rectum. When male organ is introduced in the rectum through the anus, damage to the anal verge occurs. The mucosa & skin of the anus if damaged lead to anal fissuring which is a painful condition especially during passage of faeces.
After considering all three aspects, we conclude that SOB should not be implemented due to the fact that it is detrimental on socio-religious grounds as well from the legal and medical standpoints. Finally, the concept of opportunity cost should be adopted in such issues. That is, what are the drawbacks of not imposing the bill? The question is how much suffering and disturbances will the absence of the bill cause to the Mauritian society as a whole? On the other hand, how much will the bill improve the quality of life in the pluri-cultural society of Mauritius? On top of all, will this bill help decrease the number of rapes and sexual offences in the island or will it give a boost to more anomalies in the Mauritian populace. Bearing in mind that the general concern of the public about SOB is the legalization of sodomy, it would be imprudent to implement such a bill.
The overall conclusion of a socio-religious, legal and medical is that the SOB is not appropriate for the multicultural Mauritian Republic.