Introduction
My area of research will center around the Sexual Offenses Act of Jamaica (2009) in regard to rape and marital rape, and the issue of buggery in the Offences Against the Persons Act, OAPA (2010).
Buggery refers to the act of anal intercourse, which in Jamaica is a criminal offence which is punishable by imprisonment for a term not exceeding ten years. The act of attempted buggery is also punishable by a term not exceeding seven years and any attempt to procure or procuring buggery has a term not exceeding 2 years. These aforementioned criminal acts are governed by sections 76, 77 and 79 of the OAPA.
These issues are at the center of major debates in regard to reform in the Jamaican justice system and has been for years. In this thesis I intend to highlight these issues and illustrate that such a reform is imperative. I will explore avenues that can be taken for a reform of the laws and make suggestions as to the best direction to take in reform. I believe that suggestions can be garnered from making comparisons among the laws of the US, the UK and one or two other countries with the same colonial history as Jamaica, most specifically Trinidad and Tobago. Where possible, I will discuss the human rights violations being perpetuated by these outdated laws. An example of the treaties.
Social situation of gay men in Jamaica
History
Buggery is the criminal offense of anal penetration of the male organ into the anus or mouth of another person of either sex or copulation between members of either sex with an animal[footnoteRef:1]. It is historically referred to as a “crime against nature”[footnoteRef:2] which are forms of sexual behavior not considered to be natural or decent. It is used interchangeably in law and popular speech with sodomy, but legally it is a combination of both bestiality and anal sex.
It is criminalized in the Offences Against the Persons Act (OAPA), where in section 76, entitled the ‘Unnatural Crime,’ it states that “whosoever shall be convicted of the abominable crime of buggery (anal intercourse) committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years’. Section 77, entitled ‘Attempt’ goes further, stating that “whosoever shall attempt to commit the said abominable crime, or shall be guilty of any attempt with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.” Section 78, entitled ‘Proof of Carnal Knowledge’, states that “whenever upon the trial of any offence punishable under this Act, it may be necessary to prove carnal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute carnal knowledge, but carnal knowledge shall be deemed complete upon proof of penetration alone.” Finally, section 79, entitled ‘Outrages on Decency’, states that “any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency of another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour”.
The anti-buggery law, though outdated, is still good law, and in many instances is used to defend homophobic rhetoric and violence against gay people in Jamaica. The existence of these laws, the instances of violence and the stance taken on the act of buggery and thus homosexuality did not arise in a vacuum and in order to understand the present-day situation one must examine colonialism and its impact on Jamaica.
Jamaica was originally ‘discovered’ by Christopher Columbus and settled by the Spanish in the late 15th century, and in the 17th century was taken over by the British. The British, in expanding the plantations, imported West African Slaves to the island because a larger labor force was required to farm the plantation. During these times, the British saw the slaves as needing to be civilized so as to repress their sexuality. Black men, subordinated through slavery, developed a specific masculinized identity as a means of survival and independence outside of the control of slave owners.[footnoteRef:3] The loss of their land to the white colonists signaled that the white men’s masculinity overpowered that of the black slaves, and thus made them feel emasculated, not only because of the loss of their land and therefore reliance on the white men, but also because of the lack of control they had to protest their treatment at the hands of the colonizers. Alongside this, the fact that they could not protect their wives and children from the abuse and control of the white man also played a part in their emasculation. The colonizers saw the black women as sexual beings who were their property and sexually insatiable. They were properties at the disposal of the colonizer’s sexual needs, and when they were unattainable they would turn to the men to meet their sexual needs. [3: Beckles 2004]
The knowledge that male slaves were raped in front of their partners is thought to be one of the reasons that ‘homosexuality’ is seen as a colonial imposition.[footnoteRef:4] Jamaicans adopted homophobic attitudes as a form of resistance to the physical and sexual violence that plagued their enslavement. This ideology justified a rejection of all western ideologies, which homosexuality was viewed as being influenced by liberal western sexual customs. Also, the fact that Jamaica is deeply rooted in the Christian faith contributes to the stance taken on homosexuality, as biblical verses of Leviticus 20:13[footnoteRef:5] and Genesis 1:28[footnoteRef:6] cemented that the notion that heterosexuality was good, and homosexuality was bad. Homosexuality is seen as the antithesis of masculinity as it represents the feminization of the man, and it is reminiscent of the lack of control black men had over themselves, their wives and their children during slavery.
It is quite an irony that there is a rejection of colonialism and its imposition when the OAPA was passed by colonial powers, but the anti-buggery law is celebrated as being anti-white, anti-Western and anti-colonial and thus keeping with the African and Christian values. The anti-buggery law in the OAPA still reads like the original British law in which it stemmed from. The outlawing of sodomy began in 1533 when King Henry VIII, at the time of the English withdrawal from the Catholic church, implemented contemporary church doctrine into a system of laws. Sodomy became a sin and therefore a crime, because there was no distinction made between the concepts of crime and sin. The Buggery Act 1533 was passed during King Henry VIII’s reign and was introduced into parliament by Thomas Cromwell. The Buggery Act, formally An Act for the Punishment of the Vice of Buggery, states that [para] “forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the laws of this realm for the detestable and abominable vice of buggery committed with mankind or beast… that the same offence be from henceforth adjudged a felony… and that the offenders being hereof convict by verdict, confession, or outlawry shall suffer such pains of death and losses…”.
This Act made buggery a capital offence under English law, which was subsequently exported to all of the British colonies. Buggery was punishable by death until 1861, or other punitive measures such as deportation to Australia or imprisonment. After the outlawing of executions, a new discriminatory act was implemented, the Criminal Law Amendment Act 1885, which made any homosexual act illegal. It is imperative to note throughout all of these acts outlawing buggery, female homosexuality was never an explicit target by any legal legislation. In light of this existing law, homosexual activities where still prosecuted, and this became increasingly prevalent after the end of World War II. This rise in arrest and prosecution of gay men worried authorities as they feared that homosexual members of the civil service could be possibly blackmailed into giving state secrets to the USSR. This paranoia was further advanced when a ring of spies, the Cambridge Five, passed information to the Soviet Union during the war, and the realization that two of the group members were gay. This occurrence, alongside other incidents[footnoteRef:7] led to the setting up of a Departmental Committee under Sir John Wolfenden[footnoteRef:8] to consider both homosexuality and prostitution.
The Committee put together a report recommending that ‘homosexual behavior between consenting adults in private should no longer be considered a criminal offence.’ The Committee also concluded, with near unanimity, that, “unless a deliberate attempt is made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”[footnoteRef:9] Initially, the government rejected the recommendations, however, a published article[footnoteRef:10] which was signed by many important and influential figures, called for the Wolfenden Report’s recommendations to be implemented into law. This was the key garnered parliamentary support which lead to the passing of the Sexual Offences Act 1967, which decriminalized buggery.
The Wolfenden Report helped to change the law and public attitudes and acceptance of homosexuality, and after this change in the UK, the old Commonwealth countries, such as South Africa, Canada and the United States, followed the Wolfenden Report. However, some of the new Commonwealth of Nations[footnoteRef:11] did not implement this change, as their governments had excuses similar to that of the parliament in the UK after the recommendations of the Wolfenden Report. Some of these excuses where that: ‘the population is not ready’, ‘the reform is inconsistent with local moral values’, and ‘the churches and religious leaders are opposed’. Thus, the previous law of criminalizing buggery still exists in many former British colonies today, one of such being Jamaica, and while it is reminiscent on the colonial laws implanted through slavery, it now has much deeper roots in the culture of Jamaica.
Experiences of Stigmatization, Discrimination and Violence
The situation of LGBT people in Jamaica is dreadful as they suffer from widespread stigmatization, discrimination and violence as the existence of the anti-buggery law is used as a justification for the described acts meted out to people of LGBT status. Alongside the stigma, discrimination and violence they experience, people of LGBT status also have to deal with the likelihood of prosecution, and harassment by police officers who have been given arbitrary powers by the law to detain and arrest individuals on the mere suspicion of any sexual activities between males. Abuse by the police is not only limited to harassment or threat of prosecution but also extends to the violence, stigmatization and discrimination as often times these acts are instigated by police officers. This police abuse is extremely destructive because it perpetuates an atmosphere that signals to the wider population that people of LGBT status are without any protection from violence.
As unbelievable as the stated actions of the police may seem, it is not fallacy as there are actual recorded and/or well-known instances where the police are either the ones instigating violent acts against LGBT people or are complicit in violent acts. Even where the police aren’t the instigators or directly complicit in these acts of violence, they often are apathetic to the victims of such crimes and in turn don’t try to bring these perpetrators to justice.
An instance of violence against LGBT people happened in Montego Bay, St. James where heavily armed police officers raided a club and began accosting patrons, kicking in doors, beating and pistol-whipping individuals, while simultaneously insulting the club’s patrons.[footnoteRef:12] In the confusion, patrons from other venues joined in with the officers in the abuse by hurling bottles and homophobic slurs, their abuse left 20 people to seek treatment for injuries at a local hospital. These actions are commonplace by officers as that was not the first time such action was taken, as earlier in that year police raided another gay establishment without their badges, intimidating patrons with guns and bright flashlights. [12: Tomlinson 2011 page 5 of 26 of 13120167 article buggery and the commonwealth Caribbean ]
More instances of abuse with police officers…
Abuse by civilians are also commonplace, and this instance the violence perpetuated was initiated by a prominent reggae star, Buju Banton, to Brian, a gay man, who was left blind in his left eye because of the kicks and blows by a board given to him by Banton. Buju Banton, 32 at the time of this attack, is an avowed homophobe, according to Tim Padgett (2006)[footnoteRef:13], whose song Boom Bye-Bye decrees that gays “haffi dead”.[footnoteRef:14] In June 2004, Brian claims, Banton and some thugs burst into his house near Banton’s Kingston recording studio and viciously beat him and five other men. After complaints from international human-rights groups, Banton was finally charged in the fall of 2005, but in January 2006, the judge dismissed the case for lack of evidence. Many anti-gay assaults have been acts of mob violence, as illustrated in this instance in 2004 where a teen was almost killed when his father learned his son was gay and invited a group to lynch the boy at his school; later in the same year where witnesses say, police egged on another mob that stabbed and stoned a gay man to death in Montego Bay, and in 2006, a Kingston man, Nokia Cowan, drowned after a crowd shouting “batty boy”
In 2010, a man named Kenneth Parchment was forced out of his sister’s house by men from the community who believed him to be gay. These men, including Parchment’s own 16-year-old cousin, beat him with boards, stones, and batons.[footnoteRef:16] Incidents such as this one reflects a culture of homophobia that is embedded in Jamaica to such an extent that violent actions towards persons perceived to be gay go unnoticed by local authorities. Common acceptance of public hatred towards LGBT individuals places them in an extremely vulnerable position, in which their status deprives them of significant rights within the Jamaican community. Also, in April 2007, a mob attacked a church during the burial of a man who was alleged to be gay, because protesters objected to his internment in the church cemetery.
The harassment and extreme violence experienced by LGBT people are often perpetrated in purposefully degrading and demoralizing ways. Men are forced to strip before being beaten by members of the public in a mob-like mentality, and the Human Rights Council’s 2011 report states that “homophobic hate crimes and incidents often show a high degree of cruelty and brutality and include beatings, torture, mutilation, castration and sexual assault”, and such violence is encouraged by demands that the public engage in surveillance of those under suspicion which leads to an environment of vigilantism. Alongside physical and verbal abuse, there is sexual abuse which is meted out to LGBT people, and though gay men are generally the target for hate crimes for their sexual orientation, the general pattern indicates that women are sexually victimized far more often on these grounds.
According to Amnesty International[footnoteRef:18] lesbians are often targeted for forced pregnancy, which is seen as a way of enforcing heterosexuality upon them. Many men use rape as a form of therapy. The term “corrective rape” has been coined to describe this particular type of hate crime, because the rapists claim that they are acting in the lesbian’s interest, by “teaching her to behave like a woman”.[footnoteRef:19] These crimes regularly occur especially because public officials turn a blind eye to such acts or ignore reports of violence from victims. Furthermore, victims usually do not come forward when victimized because of fear of self-incrimination, and this action enables officials to deny knowledge that violence has occurred and also to deny their responsibility in protecting citizens.
Social attitudes towards those suspected of homosexuality have led many lesbian and gay individuals to seek asylum on the basis that they fear persecution from the public, and do not trust their home state to protect them from violence, and when these issues are criticized by human rights activists, these activists are either killed or forced to seek asylum elsewhere in fear of their safety. In fact, two of Jamaica’s most prominent gay activists, Brian Williamson and Steve Harvey, were murdered, and a crowd even celebrated over Williamson’s mutilated body, while Maurice Tomlinson, another prominent Jamaican gay activist, had to seek refuge in Canada after he received countless death threats following news of his marriage to another man in 2012.
Brian Williamson, one of the very few people in Jamaica to appear openly in the media as a gay man, was murdered in his home on June 9, 2004, and his body was mutilated by multiple knife wounds. Williamson’s body was discovered on the floor of his apartment, reportedly with stab wounds to his neck and body. Because of his international prominence as a gay rights advocate, his middle-class status, and his dual Canadian/Jamaican nationality, members of the lesbian, gay, bisexual, and transgender community initially were hopeful that police would take special care in the investigation of his murder. But police actions from the start raised cause for concern as they made it difficult for eye witnesses to come forward and identify a suspect. When eye witnesses would come forward they would be met with death threats from the police because of their sexual orientation.
Often times, Jamaican politicians publicly engage in homophobic speech which fosters an atmosphere of intolerance towards LGBT people within the Jamaican population. In fact, it is evident that they endorse and encourage violence and discrimination against LGBT individuals by state and non-state actors through its propagation of homophobic speech. Political leaders in Jamaica exploit the society’s homophobia in order to garner votes in elections. For example, during the 2001 elections, the Jamaican Labour Party (“JLP”) adopted the song “Chi Chi Man” by T.O.K. as a theme song to gain popular support in the course of its campaign efforts. This song celebrates the burning and killing of gay men. In response to the JLP’s successful campaign, the opposition People’s National Party (“PNP”) adopted the song “Log On to Progress” as its campaign slogan for the 2002 elections, a reference to a popular song about kicking and stomping on gay men.
Political leaders also use the media to disseminate their messages of hatred towards the LGBT community, justifying their views by appealing to religious doctrine. For example, in September 2010, then Prime Minister Bruce Golding defended his view that same-sex conduct should remain illegal in Jamaica on the basis that Jamaica is “firstly … predominately a Christian country and a fervently Christian country.” In addition to appealing to religious ideologies, politicians also appeal to the preservation of the Jamaican culture as a way to validate discrimination against LGBT individuals. For example, then Prime Minister Golding also stated that “encouragement or recognition of the appropriateness of the homosexual lifestyle is going to undermine the effectiveness of [the] family . . . and, in that process, undermine the basic fabric of a society.” Golding also appeared on a BBC talk show in 2008 where he stated that he would not be pressured by outsiders to recognize the rights of homosexuals.
Politicians’ public statements about the LGBT community in Jamaica illuminate not only the level of intolerance, but also ignorance of the issues facing that community. For example, in February 2009, Ernest Smith, the JLP Member of Parliament (MP) for South West St. Ann, Jamaica, stated that the JLP was “not saying that gay people should be obliterated from the face of the earth . . . but because your behavioral pattern is in breach of all decency . . . do not try to impose your filth on others, don’t force others to accept you and your filth.” Smith further charged that reports of violence against LGBT individuals in Jamaica were myths. Instead, he alleged that violence against members of the LGBT community is committed not as a result of anti-gay sentiment but is committed by other LGBT individuals out of jealousy or other internal conflict. In blatant disregard of the 2004 revision of the Staff Orders for the Jamaica Civil Service, which prohibits employment discrimination based on sexual orientation, Smith accused the police force of being “overrun with gays.” He has since apologized not to the LGBT community, but to the police for making that statement, highlighting the stigma associated to LGBT status in Jamaica.
Public intolerance of LGBT individuals prevents those individuals from amassing political influence. Either it is impossible for LGBT individuals to obtain political positions, or they must hide their sexual preference in order to maintain such a position. For example, in May 2008 Prime Minister Golding stated on British television that he would not allow homosexuals in his Cabinet. Such open dissemination of politicians’ homophobic language fosters a culture in which prejudice against LGBT individuals is not only accepted but encouraged, which in turn leads to open violence and discrimination by the civilian population.
Many states with criminalization laws in place also have high rates of HIV/AIDS. 32
Moreover, many states continue to perpetuate the false assumption that gay men and sex workers are entirely responsible for its spread (AI, 2008). This can result in public health programmes being labelled as services for homosexuals, meaning that many “at risk” groups avoid them for fear of being identified (Grenada Caribbean HIV/AIDS Partnership et al., 2007) In accordance with this, AI (2008:21) states that these assumptions make it more difficult to “access information on HIV prevention, condoms and health services and [this] results in the targeting of individuals and organizations that provide HIV/AIDS education and services”. There are documented cases of doctors and other health professionals refusing to treat HIV-positive patients, stemming from the belief that they are engaging in “high risk” behavior’s and, for that reason, deserve to be sick (AI, 2008; HRW, 2004).
It is clear from the above evidence that both direct and indirect harms are inflicted by states who maintain criminalization laws, even where these laws are unenforced.
Human Rights Treaties
In Jamaica, people of LGBT status are driven from their homes and towns because of the relentless violence, discrimination and stigmatization that they are subjected to. This issue is also worsened by the fact that there is little to no police protection, they are discriminated against in health care provision, and they face public disclosure of confidential and private information because they are living with HIV/AIDS or based on their sexual orientation or gender identity. These are grave human rights violations which is not being acknowledge or addressed by the Jamaican government, and this is concerning and quite disturbing especially due to the fact that Jamaica has ratified international and regional treaties requiring it to protect human rights to freedom from violence and arbitrary arrest and detention, freedom of association and assembly, the highest attainable standard of health, privacy, and nondiscrimination based on sexual orientation, gender identity, and HIV status. These treaties include the International Covenant on Civil and Political Rights (ICCPR)[footnoteRef:22], the International Convention on Economic, Social and Cultural Rights (ICESCR)[footnoteRef:23], the Convention on the Elimination of all Forms of Discrimination against Women, the American Convention on Human Rights (ACHR)[footnoteRef:24], the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[footnoteRef:25], and the Universal Declaration of Human Rights (UDHR)[footnoteRef:26]. [22: Jamaica ratified without reservations in 1975]
Alongside the treaties, there is the Organization of American States (OAS)[footnoteRef:27], adopted five resolutions between 2008 and 2012 condemning “acts of violence and human rights violations perpetrated against individuals because of their sexual orientation and gender identity,” and urging states “to adopt the necessary measures to prevent, punish, and eradicate” discrimination. There have been extensive reviews on laws criminalizing homosexual conduct and abuses based on sexual orientation and gender identity by the United Nations bodies charged with interpreting these treaties, U.N. special experts on torture, extrajudicial executions, and health, and bodies established by the U.N. charter for the protection and promotion of human rights, but Jamaica’s anti-buggery laws and the incidents discussed above in this thesis goes against the stance taken by these bodies.
The protection of LGBT people is part of Jamaica’s binding obligations under international law and standards, which prohibit discrimination on the basis of sexual orientation. The ICCPR in articles 2[footnoteRef:28] and 26[footnoteRef:29] affirms the equality of all people, the United Nations Committee on the Rights of the Child,[footnoteRef:30] has affirmed that all children are entitled to protection against discrimination on grounds of sexual orientation. The ICCPR and the American Convention also require states to prevent torture and other cruel, inhuman or degrading treatment or punishment, including by private actors, which is not limited to “acts that cause physical pain but also to acts that cause mental suffering to the victim”[footnoteRef:31]. These treaties additionally require that state parties should ensure that all the rights recognized within the treaty are applied equally to all persons within their territory. Thus, by inciting third parties to commit acts of serious violence against men who have sex with men and failing properly to investigate crimes of violence against them, the Jamaican government is failing in its obligation to protect the right to life, and when police officers beat, mistreat, and abuse people on the basis of their HIV status, sexual orientation, or consensual sexual conduct with members of the same sex, they violate these basic protections afforded to them by the treaties. [28: ] [29: ] [30: International body of experts that monitors compliance with the Convention on the Rights of the Child (CRC), to which Jamaica acceded without reservation in 1991]
Under CEDAW in Part I, Article 2[footnoteRef:32] requires state parties “without delay” to take all appropriate measures to end gender-based discrimination by modifying rigid stereotyping of the roles of men and women, a form of prohibited gender-based discrimination, that continues to perpetuate social prejudices and contribute to gender-based violence[footnoteRef:33]. Although the CEDAW Committee’s primary focus is on violence against women, the phrase “gender-based violence” includes targeted violence against both men and women due to their sexual orientation or gender identity. Thus, men as well as women may be targeted for discrimination because they fail to conform to accepted stereotypes based on gender or because they claim a gender identity that fails to conform to the surrounding society’s expectations. The CEDAW Committee suggests measures to be adopted by the state parties to aid in combating gender-based violence against both men and women, such as instilling an effective complaints procedures and remedies for survivors of gender-based violence, and ensuring appropriate medical care, counseling and support services.
Alongside CEDAW, The U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions[footnoteRef:34] has concluded that anti-buggery laws facilitate violence and human rights abuses against sexual minorities, and criminalizing matters of sexual orientation increases the social stigmatization of members of sexual minorities, which in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life, and because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also more likely to be committed in an environment that does not strictly adhere to these human rights guidelines.
In 1994, Nicholas Toonen v. Australia[footnoteRef:35] was brought under the Optional Protocol to the ICCPR and heard by the U.N. Human Rights Committee,[footnoteRef:36] the main political body within the U.N. system charged with human rights matters which monitors compliance with and adjudicates complaints brought under the ICCPR and its Optional Protocol. In this case held that sodomy laws punishing consensual, adult homosexual conduct violate the rights to privacy and nondiscrimination guaranteed by the ICCPR. The Committee also noted that criminalization of homosexual practices hampered HIV prevention “by driving underground many of the people at risk of infection.” The Committee has thus urged states to bar discrimination based on sexual orientation. Insert Case facts. [35: ] [36: Established under article 28 of the International Covenant on Civil and Political Rights.
Since Toonen, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, and the CEDAW Committee have called for the repeal of laws criminalizing consensual adult homosexual conduct, often citing the ICCPR’s right to privacy[footnoteRef:37]. The current situation on sexual rights in the UN has relied on the use of existing conventions and rights including privacy, freedom from torture, and rights to life and freedom from discrimination[footnoteRef:38]. [37: UN Office of the High Commissioner for Human Rights [UNOHCHR], 2012] [38: Saiz, 2004; UNOHCHR, 2012]
The U.N. Commission on Human Rights interprets article 26 of the ICCPR, which “prohibit[s] any discrimination and guarantee[s] all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ as prohibiting discrimination based on HIV/AIDS.
The non-binding U.N. International Guidelines on HIV/AIDS and Human Rights enjoin states to “enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities in the public and private sectors.” The guidelines advise that the laws cover health care and access to transportation (among other areas), and note particular areas where discrimination is likely and merit legal protection, including: (1) protection from discriminatory acts, including “HIV/AIDS vilification” and vilification of people who engage in same sex relationships; and (2) protection of confidentiality of medical information, including HIV status, and other personal information, and the need for disciplinary and enforcement mechanisms in cases of breaches of confidentiality.
International law proscribing discrimination extends to discrimination in provision of transportation based on sexual orientation and HIV/AIDS. The U.N. Human Rights Committee has found that prohibitions on discrimination place a broad mandate on states to remedy unequal treatment in all areas of life, finding that article 26 of the ICCPR “prohibits discrimination in law or in fact in any field regulated or protected by the public authorities.” Jamaica is therefore responsible for providing protections against discrimination in transportation services (buses, taxis) subject to its regulation.
The ICCPR and the American Convention protect the right to liberty and security of the person and prohibit all arbitrary detention. The U.N. Working Group on Arbitrary Detention has affirmed that the detention of people solely on the basis of their sexual orientation violates fundamental human rights. The ICCPR further provides an enforceable right to compensation for victims of unlawful arrest or detention. The protections of the ICCPR and the American Convention are violated when state agents arrest or detain people on the basis of their sexual orientation, their consensual sexual conduct with others of the same sex, or their association with homosexual men and women and with sex workers.
International law recognizes the human right to obtain life-saving health services without fear of punishment or discrimination. The International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the right to the highest attainable standard of health without discrimination based on certain prohibited grounds (including sexual orientation and HIV status) and requires governments to take all necessary steps for the “prevention, treatment and control of epidemic . . . diseases. The Committee on Economic, Social and Cultural Rights has interpreted article 12 to require state parties to ensure access to information and services necessary for physical and mental health without discrimination based on HIV status and sexual orientation. According to the CESCR, article 12 of the ICESCR also requires states to take affirmative steps to promote health, including ensuring that third parties do not limit access to health-related information and services and refrain from conduct that limits people’s capacity to protect their health.
Laws and policies that “are likely to result in . . . unnecessary morbidity and preventable mortality” constitute specific violations of the right to health. Police interference with HIV prevention efforts and discriminatory access to health facilities and services are a blatant interference with the right to the highest attainable standard of health. Jamaica’s failure to ensure that government and private actors do not interfere with the ability of men who have sex with men and women who have sex with women to receive health information and services and to protect confidential information about HIV status also violates the right to the highest attainable standard of health.
Access to complete and accurate information about condoms and HIV/AIDS is recognized by article 19 of the ICCPR, which guarantees the “freedom to seek, receive and impart information of all kinds.” Parties to the ICCPR are obliged not only to refrain from censoring information, but to take active measures to give effect to this right. The Committee on Economic, Social and Cultural Rights similarly stated that “information accessibility” is an essential element of the human right to health, noting that “education and access to information concerning the main health problems in the community, including methods of preventing and controlling them” are of “comparable priority” to the core obligations of the ICESCR.
Access to HIV prevention services saves lives. Access to health care prevents people living with HIV/AIDS from unnecessary suffering and early death. The right to life is recognized by all major human rights treaties and, as interpreted by the U.N. Human Rights Committee, requires governments to take “positive measures” to increase life expectancy. These should include taking adequate steps to provide accessible information and services for HIV prevention and ensuring access to medical treatment for people living with HIV/AIDS.
For the period January to December 2017, there were twenty-four (24) reported cases of human rights violations. The majority – fifteen (15) of these cases were regarding incidents which occurred within the year. We have noted six (6) cases of police failing to adequately respond to reports referred to them. Note that generally individuals reported more than instance of a right violation, hence the difference in the number of reported cases and the types of reports. Of the 15 cases, the reported victims were one (1) cis lesbian woman, four (4) trans women, one (1) trans man, eight (8) cis gay men, one (1) cis bisexual man. In only five of the fifteen cases were reports made to the police. Many of the persons who made reports were reluctant to go to the police. 2018 For the period January to June 2018, there were 26 reported cases of human rights violations. The majority – seventeen (17) of these cases were regarding incidents which occurred this year.
Note that generally individuals reported more than instance of a right violation, hence the difference in the number of reported cases and the types of reports. Of the 17 cases, the reported victims were one (1) cis lesbian woman, five (5) trans women, nine (9) cis gay men, one (1) cis bisexual man, one (1) intersex person who is bisexual. In only five of the seventeen cases were reports made to the relevant authorities. Many of the persons who made reports were reluctant to go to the police because of the fear of discrimination or inaction on the part of the police.
Universal Declaration of Human Rights, Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. International Covenant of Civil and Political Rights Article 2 Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status
Universal Declaration of Human Rights, Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. International Covenant of Civil and Political Rights, Article 17. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks
Universal Declaration of Human Rights, Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. International Covenant of Civil and Political Rights, Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status
Statutory Framework
The anti-buggery law targets sexual acts between men – making them illegal; it enables law enforcement with the power to obtain from of penetration for suspected homosexual acts, and it gives them the power to detain any person whom they suspect to have committed or intends to commit these crimes. Though the commission of these crimes are rarely enforced, it perpetuates and legitimizes a cultural acceptance of discrimination and violence towards people of LGBT status, and so long as the laws exist so does the possibility of prosecution.
This is the consequence of putting a label of being a criminal on these individuals because that label justifies to these public or private actors, i.e. police officers or individuals, that because they are ‘criminals’ they do not deserve the protection of the law. These actions are rooted in the religious, moral, cultural and colonial background.
The rarity of the enforcement of the buggery law does not equate to no attempt made at prosecution, but it is impossible to say how often there is a conviction under the law. There are no statistics available for how often the buggery law is enforced against men engaged in same sex activities. The available statistics on reports, arrests and prosecution of buggery shows that the rate of prosecution is very low, and that in the periods of 2008 to 2010, only 57.5% of the reported cases of buggery resulted in arrest, and of those arrests, only 16.67% resulted in prosecutions – accordingly only 9.59% resulted in prosecution. The data collected for this period did not speak to how many of the prosecutions ended in conviction. While in the period 2011 to 2015, 58.8% of the reported cases of buggery resulted in an arrest, and of those arrests, only 39.42% resulted in prosecutions and of those prosecutions, 52.4% resulted in convictions. Consequently, 12.15% of the reports resulted in convictions. The statistics for the period 2011-2015 also demonstrate that the persons primarily affected by the criminalization of anal sex as formulated in section 76 are not consenting adult males, but instead adult women and children who are victims of non-consensual anal penetration.
Irrespective of convictions evident that gay men are being detained, indicted and tried for buggery as according to Lawson Williams, a Jamaican attorney, in an interview to Human Rights Watch, he stated that:
“I always seem to have a case of a practicing gay man who is in court on account of his homosexuality. It’s either that he and another have been busted and are jointly charged for [consensual] buggery, he’s been charged in circumstances where someone has alleged forcible or unwarranted homosexual advances against him, or there is an allegation that he has had sex with a minor… Too many of the charges of sex with a minor are motivated by the prejudice that gay men are naturally inclined to have sex with underage boys, and they fail because of a lack of physical or credible evidence. Usually, the police indict gay men for buggery. This is very difficult to prove in the context of consensual anal sex and there is seldom a successful prosecution for buggery. The damage is in the terror of the charge itself. Oftentimes, the defendant pleads guilty to the lesser offence of gross indecency, to abbreviate the embarrassment. Or if the defendant is adamant that he will not compromise, very often the charge is dismissed for lack of evidence. But the damage is in the charge. It is standing in the dock in the face of judge, police and sometimes other litigants, where it is known that you are charged as a battyman.
There are recorded instances of such situations mentioned by Williams, in this case there was an arrest and charge by the police of a man caught in a romantic embrace with another man, however, the presiding judge declared that there was no legal basis or legal precedent on which the accused could be convicted under.[footnoteRef:41] This illustrative of and confirms Williams’ statement, and it also shows that the police has arbitrary powers in their arrest, in this case they tried to cast a wide net so as to capture this individual’s acts under the OAPA section 77, dealing with attempt, as there is no need for proof of penetration. This case is indicative of the problems gay men not only limited to prosecution as they are at risk for discrimination and violence at the hands of private and public actors.
What many fail to recognize is that the existence of this law adversely affects the legal rights of women and children more than it does men. In order to understand the statement, it is imperative to analyze the sexual offences act of Jamaica, re: rape, grievous sexual assult, etc.
