A Trace of Law: State Building and the Criminalization of Buggery in Jamaica

Jamaica’s laws criminalizing “abominable crime of buggery” and other sexual contact between males are found in the 1864 Offences against the Persons Act (OAPA) which modelled 1861 UK legislation. Violence and intolerance as well as these locked-in criminal laws have contributed to Jamaica’s global reputation as a site of exceptional homophobia. The paper seeks to read colonial law as a “trace” rather than offering a self-evident univocal truth about colonialism and male homosexuality. In decentering the OAPA, buggery assumes “multiple shifting significations” and shows up the “mechanisms through which state and nation are mediated”. This paper examines the criminalization of buggery in two key moments of state building in Jamaica. The first is the decades that followed the end of slavery in Jamaica in the second half of the nineteenth century. Modernizing post-slavery criminal law and the penal justice system utilized corporal punishment to index the ungovernable black man as a subject prone to sex crimes like buggery and rape and a necessary site of physical punishment. The OAPA was a dimension of enduring post-emancipation structures of legality that were critical in governing a race based political system and that provided legitimacy for the colonial state. Second, the paper turns to waning years of colonization in the 1950s and 1960s which were marked by mass migration of West Indians to Britain, political negotiations and constitution making, and debates about law and morality with transatlantic resonance that helped define male homosexual identity through and as buggery. Jamaica’s independence constitution of 1962, and its interpretation by the UK based Privy Council, constructed a sphere of higher order law comprised of constitutions and colonial law like the OAPA in which the latter became sacrosanct and exalted “as part and parcel of this country”, drawing on mythical tradition of colonial law’s civilizing mission.