necessary implication) that no such justification existed and held that the crime in question could not withstand constitutional scrutiny in as much as “no rational basis for [its] retention … can be offered.”[1]
[12]Heher J’s approach to the common law offence of committing an unnatural sexual act was different. Having found, under section 9(1) of the 1996 Constitution, that there was no connection between the differentiation involved in this offence and any legitimate governmental purpose, he immediately turned to the question of justification. He concluded that there was no justification for maintaining the common law crime of committing an unnatural sexual act by a man or between men, if such act would not constitute an offence if committed by a woman, between women or between a man and a woman; and made a declaration of constitutional inconsistency accordingly.
[13]Section 20A of the Sexual Offences Act provides as follows:
“(1) A male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence. (2) For the purposes of subsection (1) 'a party' means any occasion where more than two persons are present. (3) The provisions of subsection (1) do not derogate from the common law, any
- ↑ Id at 750E.
