Text of Liberia’s Bill to Make Homosexuality a First Degree Felony

This morning I received the text of the proposed amendment concerning homosexuality from Jarlawah Tonpo, Director of Press and Public Affairs of the Liberia Senate. Offered by former First Lady, Sen. Jewel Taylor, the amendment has not yet been debated and is not law. No date has been set for debate or vote. Both Houses of the legislature would need to pass the bill to send to the President for signature or veto. I wrote about this bill and a companion bill in their House last week.

As far as I can determine, in Liberia penalties for a First Degree Felony can range from 10 years in prison to death. The amendment is short and without definitions.

SENATOR TAYLOR’S PROPOSED AMENDMENT

TO THE DOMESTIC RELATIONS LAW OF LIBERIA

LAW AS CURRENTLY STATED

DOMESTIC RELATIONS LAW

Sub section 2.3 who may not marry

“No marriage shall be contracted between persons, one or both of whom has a spouse still living; not

between an ancestor and a descendant, a brother and sister of either the whole or the half blood, an uncle and niece or an aunt and nephew, or first cousins; or of persons of the same sex.

AMENDMENT

To Amend and restate Section 2.3 of the Domestic Relations Law to provide for the prohibition of same sex marriages in Liberia.

It is enacted by the Honorable Senate and House of Representatives of the Republic of Liberia, in Legislature assembled:

Section 1:

That from and immediately after the passage of this Act. Section 2.3 of the Domestic Relations Law is hereby amended and restated as follow:

This prohibition shall apply whether the prescribe relatives are legitimate or illegitimate. No one shall  give effect to any public act, record, or judicial proceeding of any one which represents a relationship between persons of the same sex that is treated as a marriage under the laws of the Republic.

Section 2:

No two persons of the same sex shall have sexual relations. A violation of this prohibition will be considered a first degree felony.

This Act shall take effect immediately upon publication into Handbills.

ANY LAW TO THE CONTRARY NOTWITHSTANDING

Now Liberia: Senator proposes death penalty for gays

In a conversation last year, David Bahati told me that other African nations had expressed interest in his Anti-Homosexuality Bill. I do not know whether or not Jewel Howard Taylor (ex-first lady of Liberia, now Senator) has seen Bahati’s bill but she is proposing a similar measure. According to the AFP:

MONROVIA — Former Liberian first lady Jewel Howard Taylor has introduced a bill making homosexuality liable to a death sentence, amid a raging debate over gay rights in the country, a lawmaker said Wednesday.

The bill submitted by former president Charles Taylor’s ex-wife, now a senator, also seeks to amend laws to prohibit gay marriage.

“No two persons of the same sex shall have sexual relations. A violation of this prohibition will be considered a first degree felony,” reads the proposed amendment to marriage laws.

First degree punishment can range from 10 years to life imprisonment to the death sentence, on the discretion of the judge.

Voluntary sodomy is already a criminal offence in the west African country and can result in up to three years imprisonment, according to a lawyer consulted by AFP.

George Tengbeh, a senator supporting the bill, said he hoped it would put an end to months of acrimonious public debate on gay rights.

Some additional background on Sen. Taylor’s actions…

A similar bill was offered in the Liberian House last week by Clarence K. Massaquoi. This article has some detail about the proposed Act:

The Act states among other things that immediately after the passage of the Act, Chapter 14, Sub-Chapter D of the New Penal Code will now be amended and that Section 2 Sub-Chapter 14.80 will be added to which states that a person is guilty of Same Sex Sexual practices if he/she has sexual intercourse with another person of the same gender (male/female) with or without the consent of either person.

The Act also states that a person is guilty if he/she purposefully engages in acts that arouses or tend to arouse another person of the same gender (male/female) to have sexual intercourse; willfully, and with total disregard to societal moral dignity, seduces, encourages, promotes another person of the same gender (male/female) to engage into sexual activities.
According to the proposed bill which has been sent into committee room for review, Same Sex Sexual Practices is a felony of the Second degree, and as such the trial of all cases under Chapter 14.80 shall be heard in open Court.
The bill was on the Liberian House agenda last week.

David Barton misleads Focus on the Family on death penalty case

Last week, Focus on the Family produced a series of broadcasts titled the Founding of America, featuring David Barton. In one of them, Barton told the audience that the Supreme Court overturned a murder conviction because the prosecutor used a Bible verse in his closing arguments. Here is Barton’s version of the case:

I mean, you do something religious in the courtroom and you’re in a lot of trouble, as evidenced by the case that we had at the Supreme Court not long ago, called Commonwealth v. Chambers. And that case came out of Pennsylvania. A man named Carl Chambers was convicted by a jury for taking an axe handle and brutally clubbing to death a 71-year-old woman to steal her Social Security check.
Not only was he convicted by the jury, he was sentenced to death by that jury. And yet, the Court overturned his conviction, because they pointed out that despite all the evidence and all the witnesses and all the testimony, something terrible had happened in the courtroom. They said that in a statement of less than five seconds, the prosecuting attorney had mentioned seven words out loud from the Bible. And the Court said, “We can’t have that. So, despite the evidence, despite the brutal nature of this crime, you mentioned a Bible verse, now we’ve got to reverse the murder sentence of this brutal murderer, because you mentioned a Bible verse in the courtroom.”
You see, today law and religion are enemies. They don’t get along, but back then, they were like two yoke of oxen, pulling in the same direction, never to be separated.

This description is quite misleading. Barton makes it seem as though a brutal murder went unpunished because the Supreme Court (Pennsylvania’s) penalized the prosecutor for citing the Bible. The facts of the case paint a completely different picture.
First, here are the facts Barton got right. In 1987, Karl Stephenson Chambers was convicted of robbing and killing Anna Mae Morris in 1986. The evidence was circumstantial but convincing to the jury and they found Chambers guilty of robbery and murder. During the sentencing phase, the prosecutor referred briefly to the Bible. The jury then rendered a sentence of death. Chambers appealed and based on the Bible reference, the PA Supreme Court vacated the death sentence.
At this point, the facts diverge from Barton’s rendition. Barton says the “Court overturned his conviction,” leaving the clear impression that the court let a guilty man go free. However, the conviction, or as Barton also framed it — “murder sentence” — was not overturned. The initial sentence of the death penalty was set aside so that a new sentencing hearing could be held. That hearing was held and that jury came back with the same sentence of death. So Barton’s contention that “the Court overturned his conviction, because they pointed out that despite all the evidence and all the witnesses and all the testimony, something terrible had happened in the courtroom” is simply not true.
Eventually, Chambers death sentence was set aside in favor of life in prison, but this change had nothing to do with the use of the biblical reference. In 2005, attorney William Hangley argued before a York (PA) County judge that Chambers could not be executed because Chambers is mentally retarded. In 2002, the US Supreme Court ruled in Atkins v. Virginia that executing a mentally impaired person was “cruel and usual punishment.” Chambers scored a 60 as a middle school student and 74 as an adult inmate leading the Court to convert his death row fate to life in prison. The federal court agreed which took Chambers off death row. Attorney Bill Hangley confirmed to me in an email that Chambers is still serving his life sentence.
Having established that Barton embellished the situation to make it seem as though the PA Supreme Court was prejudiced in the extreme against religion, let me come back to what the prosecutor said and the rationale of the Court for their ruling. In making a case for the death penalty, York County prosecutor Stan Rebert told the jury, “Karl Chambers has taken a life. As the Bible says, `and the murderer shall be put to death.'”
Why did the PA Supreme Court have a problem with that? Essentially, they argued that the prosecutor improperly appealed to a law other than civil law. Note that the Supreme Court allows some references to the Bible in court but they objected to this one for specific reasons. Here is the section on point from Commonwealth v. Chambers:

Finally, Appellant [Chambers] argues that the prosecutor overstepped the permissible bounds of oratorical flair in his closing argument by referring to the Bible. The record shows that the prosecutor stated, “Karl Chambers has taken a life.” (R., p. 1201). “As the Bible says, `and the murderer shall be put to death.'” (R., p. 1201). Defense counsel objected. The trial court immediately noted this objection and gave a curative instruction to the jury…
Here, the prosecutor argued, “As the Bible says, `and the murderer shall be put to death.'” This reference is substantially different than the references tolerated in Henry and Whitney where the prosecutor allegorically likened the Defendant to the Prince of Darkness mentioned in the Bible to establish that he was an evil person. More than allegorical reference, this argument by the prosecutor advocates to the jury that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for Appellant. By arguing that the Bible dogmatically commands that “the murderer shall be put to death,” the prosecutor interjected religious law as an additional factor for the jury’s consideration which neither flows from the evidence or any legitimate inference to be drawn therefrom. We believe that such an argument is a deliberate attempt to destroy the objectivity and impartiality of the jury which cannot be cured and which we will not countenance. Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty.
Our Legislature has enacted a Death Penalty Statute which carefully categorizes all the factors that a jury should consider in determining whether the death penalty is an appropriate punishment and, if a penalty of death is meted out by a jury, it must be because the jury was satisfied that the substantive law of the Commonwealth requires its imposition, not because of some other source of law.
Because the prosecutor’s argument in favor of the death penalty reached outside of the evidence of the case and the law of this Commonwealth, we are not convinced that the penalty was not the product of passion, prejudice or an arbitrary factor and, therefore, pursuant to our Death Penalty Statute, we must vacate the sentence of death and remand this matter for a new sentencing hearing. 42 Pa.C.S. § 9711(h)(4).
Accordingly, the conviction of murder of the first degree and the conviction and sentence imposed for robbery are affirmed, the sentence of death is vacated and the matter is remanded to the Court of Common Pleas of York County for a new sentencing hearing.

I think the reasoning of the PA court does not indicate hostility toward religion per se. On point, the money quote from the Commonwealth v. Chambers is this:

Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty.

This was not a situation where the Court discriminated against religious speech. The prosecutor invoked Mosaic law instead of the governing statute – the laws of PA. In conservatively religious York County, PA, I can understand why such directions may generate biased responding by a jury. Furthermore, there are many outcomes envisioned by various religions about what would be proper in cases of murder. The courts cannot include persuasion which appeals to authority other than the statutes which cover all citizens.
David Barton offers this case as evidence that “if you do something religious in the court room,” “you’re in a lot of trouble.” That may or may not be true in certain situations, but, in this case, it seems to me that his concern could be stated more accurately, “if you attempt to implement a pro-death penalty interpretation of Christianity in court as a means of deciding a case, then you are in trouble.”
There are religious traditions that oppose the death penalty on religious grounds. Some of those people might argue the fact that Karl Chambers is alive but in prison today is the best religious outcome. It is certainly possible that those opposed to the death penalty on religious grounds are glad that the PA Supreme Court restricts religious speech calling for the death penalty based on the Old Testament. By inaccurately citing the Chambers case, it seems to me that Barton is not complaining that the PA Court disrespected religion in some general way, he is troubled that the court failed to privilege his religion.
Note: The entire legal history of the Chambers case is available in this District Court decision.

Uganda's Anti-Homosexuality Bill: Is the death penalty off the table or not?

Earlier today, I received a report from a source in Uganda which appears to be the report from the Legal and Parliamentary Affairs committee on the AHB. I did not write about it because I could not confirm that the report was indeed a final report from that committee. Given the time in Kampala, I won’t be able to confirm it until tomorrow. However, if the report is the committee’s final report then the death penalty may not be off the table. Let me add that the report looks like other committee reports I have seen and matches up with what I have heard it contains with the exception of the claims about the death penalty.
For now, I am going to focus on section three of the report which is where the death penalty can be found. Here is section 3 from the bill:

3. Aggravated homosexuality.
(1) A person commits the offense of aggravated homosexuality where the
(a) person against whom the offence is committed is below the age of 18 years;
(b) offender is a person living with HIV;
(c) offender is a parent or guardian of the person against whom the offence is committed;
(d) offender is a person in authority over the person against whom the offence is committed;
(e) victim of the offence is a person with disability;
(f) offender is a serial offender, or
(g) offender applies, administers or causes to be used by any man or woman any drug, matter or thing with intent to stupefy overpower him or her so as to there by enable any person to have unlawful carnal connection with any person of the same sex,
(2) A person who commits the offence of aggravated homosexuality shall be liable on conviction to suffer death.
(3) Where a person is charged with the offence under this section, that person shall undergo a medical examination to ascertain his or her HIV status.

Note especially #2 above and then read the recommendation for section three in the committee report:

1.   Clause 3 (2) is amended by substituting for the words “…suffer death’’ with words “…the penalty provided for aggravated defilement under Section 129 of the Penal Code Act”.

The justification for this change is given as follows:

Justification
To harmonise the provision with the penalty under the Penal Code Act

Now at issue is “the penalty provided for aggravated defilement under Section 129 of the Penal Code Act.” What is it? Here is Section 129 of the Penal Code Act. Read this and find the penalty:

Defilement of persons under eighteen years of age
129. (1) Any person who performs a sexual act with another person who is below the age of eighteen years, commits a felony known as defilement and is on conviction liable to life imprisonment.
(2) Any person who attempts to perform a sexual act with another person who is below the age of eighteen years commits an offence and is on conviction, liable to imprisonment not exceeding eighteen years.
(3) Any person who attempts to perform a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.
(4) The circumstances referred to in subsection (3) are as follows—
(a) where the person against whom the offence is committed is below the age of fourteen years;
(b) where the offender to his or her knowledge, is infected with Human Immunodeficiency Virus (HIV), Acquired Immune Deficiency Syndrome(AIDS);
(c) where the offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed; or
(d) where the offender is a serial offender.
(5) Any person who attempts to perform a sexual act with another person below the age of eighteen years in any of the circumstances specified in subsection (4), commits an offence and is liable on conviction, to imprisonment for life.
(6) In this section unless the context otherwise requires—
“serial offender” means a person who has a previous conviction for the offence of defilement or aggravated defilement;
“sexual act” means penetration of the vagina, mouth, or anus, however slight, of any person by a sexual organ or the use of any object or organ by a person on another person’s sexual organ
“sexual organ” includes a vagina or penis.

Note that the penalty for “aggravated defilement” (underlined in bold above) is death. Now note that the AHB only refers to the penalty for aggravated defilement and not any of the offenses. The recommendation does not seem to be a substitution of defilement laws (which by the way covers both boys and girls), but rather is simply another way of wording the death penalty.
Those who are saying the death penalty has been removed have some explaining to do. No one should accept those claims after reviewing this report.