By Maurice Tomlinson of AIDSFREEWORLD
August 1, 2011
The Global Commission on HIV and the Law has been holding a series of regional consultations to interrogate the connection between punitive laws and their impact on the HIV epidemic. The Caribbean leg took place from April 14-15, 2011, and Maurice Tomlinson made the following submission highlighting the nexus between the 147-year-old Jamaican anti-buggery law, the country’s notorious homophobia (measured at 82.2% of the population), and the grossly disproportionate HIV prevalence rate of 32% among Jamaican men-who-have-sex-with-men (MSM) as against 1.6% in the general population.
Section 13.1 of the 2004 revision of the Staff Orders for the Jamaican Public Service prohibits discrimination on the grounds of, inter alia, sexual orientation.1 However, Jamaica’s 1864 colonially-imposed buggery law still criminalizes any form of consensual adult male same-sex intimacy, whether private or public.
2 The HIV prevalence rate among Jamaican men who have sex with men (MSM) is 32% as against 1.6% in the general population.
3 Alternatively, in Cuba, Suriname, the Bahamas and the Dominican Republic (Caribbean countries without such legislation), the HIV prevalence among MSM ranges from one to eight per cent. It would be an over-simplification to argue that the presence of Jamaica’s anti-buggery/gross-indecency legislation is the cause of the high HIV prevalence rate among MSM. However, the legislation certainly contributes to the island’s legendary climate of homophobic violence, discrimination, and deep stigma associated with homosexuality that the Jamaican Ministry of Health has acknowledged are among the factors driving the national epidemic.
4 For example, popular Jamaican dancehall artiste and 2010 Grammy winner, Buju Banton, sang about shooting and killing gays and when challenged about his homophobia he said it was justified under Jamaican law.
5 The criminalization of male same-sex conduct not only breeds homophobic violence, it also systematically drives Jamaican lesbians, gays, bisexual, transgender and intersex individuals (LGBTI) underground, away from effective HIV prevention, treatment, care and support interventions.
6 The major LGBTI organization on the island, Jamaica Forum for Lesbians, All-Sexuals, and Gays (J-FLAG), reports that homophobic attacks by state and non-state actors are common. AIDS-Free World is working with J-FLAG to effectively document these attacks. In February, 2011, there were two police raids of gay clubs in Kingston and Montego Bay, and during the Montego Bay raid, heavily armed officers kicked in doors, aggressively accosted patrons, indiscriminately beat and pistol-whipped them and chased everyone from the venue. Throughout the operation the police hurled homophobic slurs encouraging clientele of nearby clubs to join in the melee by throwing bottles, stones and other missiles as individuals fled for their lives. The club served to house many LGBTI who had been evicted from their homes because of their sexual identity, and the major AIDS NGO on the island, Jamaica AIDS Support for Life, regularly used it for HIV outreach. Even though Jamaica does not criminalize same-sex female intimacy, amongst the general population, the belief is that any form of homosexuality is outlawed. The result is that “corrective rapes” of lesbians to make them straight are not uncommon.
7 There is no record that such rapes have ever been perpetrated with the use of condoms.
8 The presence of the anti-buggery/gross-indecency law also precludes the distribution of condoms in Jamaican prisons with the result that the HIV prevalence rate among inmates is twice the national average. In 1997, the Commissioner of Corrections, on the advice of his prison doctor, proposed the distribution of condoms in the island’s prisons but was advised that he would be aiding and abetting a criminal offence namely buggery. Condoms thus remain contraband in Jamaica’s prisons although there are reports that prison warders do a thriving business trading in them. Prisoners who can’t afford to pay resort to the use of plastic bags. Jamaica’s supermarkets are now “going green” and will soon cease to distribute this major prophylaxis used by inmates. The result is that the HIV and AIDS prevalence among prisoners is expected to rise. Once they are released, their partners are also at risk, as the Ministry of Health has recorded high levels of unprotected sex and promiscuity among the Jamaican population.
Section 26 (b) of the Jamaican Constitution ”saves” the country’s 1864 anti-buggery law from judicial review, along with all pre-independence laws. Although the Constitution is being reviewed in order to provide for an expanded Charter of Fundamental Rights and Freedoms, a savings law clause is being re-inserted with regard to sexual offences. The result is that Jamaican courts will still be precluded from reviewing these laws in line with evolving societal standards and norms. A domestic legal challenge (as happened in India to repeal that country’s anti-sodomy law9) is therefore seemingly impossible in Jamaica.
Jamaica’s homophobic laws have been justified by relativist arguments based on Judeo-Christian theology. Notwithstanding the fact that section 21 of the Constitution guarantees the freedom of religion,10 the very idea that homosexual identity or practice is somehow “non-Christian” demonstrates the unfortunate role that religious leaders have played in perpetuating harmful stereotypes. Cultural arguments are also often used as justification for retaining Jamaica’s homophobic laws. However, as the UN Secretary General reminded the world on World Human Rights Day December 10, 2010, while cultural sensitivities may make it difficult to recognize the human rights of LGBTI, culture must never be used as justification for the denial of fundamental human rights. Finally, some of Jamaica’s elected officials have claimed that they are unable to change Jamaica’s buggery/gross indecency law until “society changes first.” While reasonable people may disagree as to the relationship between laws and attitudes, it is clear that the job of legislators is to ensure that all laws are fair, non-discriminatory, and comport with basic principles of civil and human rights. Jamaica’s legislators have failed to address the fundamentally discriminatory nature of the buggery/gross indecency law by allowing it to stand.
Conclusions
Jamaica’s anti-buggery/gross-indecency law contributes to violence and abuse by police and private citizens of LGBTI citizens. The laws also marginalize LGTI and inhibit them from seeking treatment for HIV and other sexually transmitted diseases that increase the risk of HIV transmission. The prevailing association of HIV and AIDS with homosexuality compounds the marginalization of many people living with HIV and AIDS, who face additional stigmatization through the presumption that they have engaged in illegal sex. It also keeps those at highest risk of the disease—including people who do not engage in homosexual sex—from seeking HIV-related information and health services.
Recommendations to the Commission
• Denounce and condemn Jamaica’s anti-buggery/gross-indecency laws;
• Demand that Jamaica ensure that all allegations of excessive use of force and other human rights violations by law enforcement officials based on real or perceived sexual orientation and gender identity or expression are investigated promptly and thoroughly;
• Demand that Jamaica train all law enforcement and criminal justice officials on international human rights standards and nondiscrimination;
• Demand that Jamaica conduct awareness raising programs, especially through the education system, to address social stigma and exclusion of individuals and communities on grounds of their sexual orientation and gender identity and expression; and
• Demand that Jamaica facilitate access to social services, and especially health services, regardless of the individual’s sexual orientation, gender identity and expression, and/or HIV status.
ENDS
1 http://www.moj.gov.jm/pdf/rev_staff_order.pdf, page 80.
2 Offences Against the Person Act 1864 s 76 criminalizes anal intercourse; s 77 criminalizes any attempt by males to engage in anal intercourse; and s 79 criminalizes any act of “gross indecency” between men.
3 2009 UNAIDS report.
4 See, e.g., Jamaican Ministry of Health, Jamaica HIV/AIDS/STI National Strategic Plan 2002-2006, January 2002, p. 10; see also Zadie Neufville, “Fear Among Gay Men Said to Fuel HIV/AIDS Cases,” Inter Press Service, March 5, 2002; Garwin Davis, “Homophobia Remains High. Gays Remain in Seclusion, Health Officials Worry,” The Jamaica Gleaner, July 26, 2001.
5 http://www.youtube.com/watch?v=GIRmQNM4xUk, accessed March 2, 2011. Other popular Jamaican dancehall artistes are also notorious for their performance of virulently homophobic songs, such as Elephant Man, who justifies the corrective rape of lesbians, Capleton, who invokes the burning of gays, and the group T.O.K., which endorses the stomping and kicking of gays.
6 Human Rights Watch interview with Dr. Yitades Gebre, executive director, Ministry of Health Program Coordination Unit, Kingston, June 23, 2004, and Human Rights Watch interview with Dr. Peter Figueroa, chief, Ministry of Health Epidemiology Unit, Kingston, June 23, 2004, demonstrate that providing HIV education and prevention services to men who have sex with men is extremely difficult because they are forced to remain invisible due to prejudice and abuse.
7 See Makeda Silvera, “Man Royals and Sodomites: Some Thoughts on the Invisibility of Afro-Caribbean Lesbians,” Feminist Studies, vol. 18, no. 3, Fall 1992, pp. 521-532 (reporting gang rape of women “suspected” of lesbianism in 1950s Jamaican towns).
8 In 2010, J-FLAG received reports of three (3) corrective rapes, two of which occurred within days of each other. In one instance, four men gang-raped a lesbian and used a knife to cut her so she can better “tek man.” In the other instance, the lesbian was savagely raped at gun-point, and then dumped half-naked after her ordeal. Her rapist commented on how “tight” she was and promised that the next time he would use a condom.
9 In Naz Foundation v. Government of NCT of Delhi and Others WP(C) No.7455/2001 the High Court of Delhi struck down much of S. 377 of the Indian Penal Code as being unconstitutional. The Court held that to the extent S. 377 criminalised consensual non-vaginal sexual acts between adults, it violated an individual's fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India. Jamaica’s Constitution guarantees similar rights in Article 13.
10 In September 2010, the Jamaican Prime Minister said at an interview at the United Nations in New York that homosexual acts remain illegal in Jamaica because the country is a Christian country.
Quick Two Cents
Another well written paper but like many before they come and go and very little or no improvements, let us see if there will be action this time around. It's one thing to prepare lovely papers it's another to properly engage the community, a set of criticisms that will continue to come until we see major improvements in that department. See the post below on that:
Peace and tolerance
H
