By Joshua Spencer

Would the following law be justified in Canada today? “Any person who engages in sodomy is guilty of an offence. Sodomy for the purpose of this act shall be defined as any sexual intercourse between members of the same sex, or any acts of oral or anal sex, whether between persons of the same sex or opposite sex. The penalty for anyone found guilty of the offence under this law, shall be imprisonment for not more than five years and not less than one year.

” This paper seeks to establish whether the above law would be justified in Canada today from the perspectives of different theories and philosophical writings. To effect such an analysis, I will engage the theories and writings of John Stuart Mill, On Liberty , Dworkin’s Paternalism, facts from the Bowers v Hardwick case of the United States and excerpts from the Canadian Charter of Rights And freedoms. I will argue against the justifiability of such law in Canada today.

There are several factors inherent in the above law which would deem it unjustifiable from Mill's perspective. Firstly, and very significantly, for him, Mill's outrage would be expressed and vented on the basis that the law sets out to admonish and punish an act that is self-regarding. Put another way, one’s decision to engage in a sexual act as is described in this law, though not encroaching on the interests, prejudicially or otherwise, of others, is made to be a crime. According to Mill, the only correct basis on which one’s liberty can be curtailed in anyway, is with respect to the ‘harm principle’. The harm principle stipulates that the liberty of others may only be restricted on the basis that such liberty will cause harm to others. “What harm can the creative and pleasurable acts of homosexuals or sodomites cause to others?” Might be Mill’s query. Secondly, Mill would argue that even if the act of sodomy in one’s private domain could be proven somewhat inimical and offensive to others, there exists various non-punitive ways to address the matter. If one finds the act so terribly obnoxious, Mill would argue that instead of declaring it criminal and justified to be punished, alternate steps could be made to elicit a desired outcome. Society could employ positive measures such as education and persuasion to attain that end instead of interfering in one’s liberty to do as he or she pleases with respect to one’s private life, by punitive means.

The third factor which makes the Sodomy law unjustifiable from Mill’s point of view is that it denies and stifles one’s independence. Mill states, “The only part of the conduct of anyone for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is of right, absolute.”

(Please purchase the book, "Let's Talk Africa and More" to complete the reading of this article and others. ISBN: 1424160480 Author: Joshua Spencer).

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