It is well known that many Jamaicans have expressed concerns and disgust at the display of effigies with oversized penises and the open display of the female sex organ, especially in the Fern Gully in the parish of St. Ann. In recent times, even the Legal Eagle has weighed in on the discussion. The Legal Eagle strongly feels that there must be something that can be done, as a matter of law, to curb such obscene practices. It is for that reason that Legal Eagle once again undertakes an examination of the issue.
Recently, I read a chapter on obscenity and indecency in a very old criminal law text. The introductory remarks to the chapter read in part: "In general all open lewdness, grossly scan-dalous, and whatever openly outrages decency or is offensive and disgusting or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order is a misdemeanour indictable at common law". The writer further states that the acts which fall within the general definition may be classified as (i)obscene publications (ii)obscene or indecent exhibitions (iii) indecent exposure of the human body. It is immaterial whether the publication (or exhibition) is in writing or in print or by sign, picture or effigy.
So what is an effigy? The New Penguin English Dictionary defines effigy as, "an image or representation, especially of a person." Could it then be said that what are presented by the Fern Gully "Artists" are effigies?
It is also important to look at a working definition for obscene. Again, quoting from The New Penguin English Dictionary obscene means "offending standards especially sexual propriety or decency." In law, the test of obscenity is "whether the tendency of the matter published is to deprave and corrupt those whose minds are opened to such immoral influence."
We must remember that these effigies are displayed on the side of a busy public thoroughfare in the full view of thousands of young children who are inquisitive and curious, as children naturally are.
If they are accepted as effigies that fall within the definition of that which is described as indecent exhibition or publication, then the first question we should consider is whether the offence stated above can be accepted in our jurisdiction as rendering the public exhibition of these effigies punishable as a common law crime. It is trite law and as noted attorney-at-law, Raphael Codlin, in his book, Historical Foundation of Jamaican Law, reminds us: "both English and Jamaican courts, by the middle of the nineteenth century, were firmly of the view that English common law is applicable to Jamaica except where local circumstances dictate to the contrary."
It is also an acceptable principle of law that resort can be had to the common law for a remedy where there is no statutory provision in respect of the matter complained of. Within this context, I have also examined as a likely relevant statutory provision, the Obscene Publications (Sup-pression Of) Act. This Act in section 2 (a) provides: "any person who for purposes of or by way of trade or for distribution or by public exhibition makes or produces or has in his possession any obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films or any obscene objects" shall be guilty of a criminal offence and liable to a conviction before a Resident Magistrate. The provisions of this statute seem wide enough to ensnare within its net the offensive effigies along the Fern Gully "corridor".
It seems clear to Legal Eagle, that we have at our disposal legal weapons that can be used to stamp out these offensive exhibitions. If, indeed, it is accepted that there are legal provisions that render such practice a criminal offence - be it at common law or by statute, then the law must take its course swiftly, especially to protect our children who are already the victims of a morally depraved society.
Keith N. Bishop is an Attorney-at-Law and partner in the firm of Bishop & Fullerton. He may be contacted by e-mail at knb@bishopfullerton.com.
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