(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Jamaican law does not specifically ban homosexuality. Anal sex is however prohibited under the Offences Against the Person Act as an “unnatural offence”, asstated in Article 76. The act of “buggery” or an attempt to commit buggery (Article 77) is punishable by imprisonment and hard labour. In order to provide evidence of the offence, the law requires proof of penetration but not ejaculation (Article 78). Furthermore, Article 79 states that acts of “gross indecency” between men are illegal in public or private, but there is no detailed description of what these acts would entail.
Relations between females are not mentioned in the law. It is therefore not illegal for women to be sexually active with other women, however, lesbians are heavily discriminated against in Jamaica.
Jamaica has ratified most international human rights law instruments, including the Universal Declaration of Human Rights of 1948. It is also part of the United Nations and it became party to the International Covenant on Civil and Political Rights on October 3, 1975. In addition, the 1962 Constitution of Jamaica states the right to “have your privacy respected within your home and family.”
In 2011, a constitutional amendment was made, known as the Charter of Fundamental Rights and Freedoms, along with a further amendment put forward eleven days later. The UN Human Rights Committee recommended that it prohibit discrimination on the grounds of “sex”. Instead, the language adopted is that of “male and female”, excluding the possibility of the court to provide protection on the basis of sexual orientation and gender identity.
Offences Against the Person Act (1864, last amended 2010)
“Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labor for a term not exceeding ten years.”
“Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.”
Proof of Carnal Knowledge
“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 a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only.”
Outrages of Decency
“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 with another male person, shall be guilty of a misdemeanour, 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.”
Fundamental Rights and Freedoms
43. Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-
1. life, liberty, security of the person, the enjoyment of property and the protection of the law;
2. freedom of conscience, of expression and of peaceful assembly and association; and
3. respect for his private and family life, the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest. “
The claimant was a Jamaican national who came to the United Kingdom and claimed asylum on the grounds of his risk of persecution in Jamaica on account of him being a homosexual. The claimant was detained under the non-suspensive appeals process and his application for asylum refused. The claimant applied for judicial review of the defendant Secretary of State’s decision to include Jamaica in the designated list of countries contained in §94(4) of theNationality, Immigration and Asylum Act 2002 and the decision to detain him. The judge dismissed the claimant’s application.
The Court of Appeal, Civil Division held (2:1) that it was unlawful of the Secretary of State for the Home Department to continue to designate Jamaica, under section 94 of the Nationality, Immigration and Asylum Act 2002, as a state where “there is in general no serious risk of persecution”, given the high level of persecution in Jamaica of persons known or suspected of being gay, lesbian, bisexual or transgender.
The Court further held (3:0) that JB’s detention under the detained non-suspensive appeal (DNSA) and detained fast track (DFT) schemes were unlawful because the Secretary of State had failed to carefully assess whether his case could be processed fairly and sustainably in about two weeks as required by section 2 of the DFT/DNSA policy.
SW (lesbians – HJ and HT applied) Jamaica v. Secretary of State for the Home Department
The asylum appeal was allowed after the original Tribunal was found to have made a material error of law. The appellant’s sexual orientation was accepted, it was affirmed that openly homosexual people are liable to persecution in Jamaica.
(London, Jun 2011)
NR (Jamaica) v. Secretary of State for the Home Department
The asylum appeal was allowed after the original Tribunal was found to have made an error of law. The case is to be remitted for consideration to establish the appellant’s sexual orientation.
(London, Aug 2009)
DW (Homosexual Men – Persecution – Sufficiency of Protection) Jamaica v. Secretary of State for the Home Department
The appeal is allowed on asylum grounds and Article 3 ECHR human rights grounds following a material error of law made by the original Tribunal that did not believe the appellant to be homosexual or that he had been assaulted.
(London, Nov 2005).
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
According to Human Rights Watch, “attacks on homosexual people or people perceived as being homosexual or transgender” are commonplace in Jamaica.
LGBTI people live in constant fear of physical and psychological abuse. It is recurrent for gay men to be beaten, lesbians to be raped, and for gay-rights activists to be threatened or even murdered. In response to these attacks, the state usually does not take action. In fact, law enforcement officers have been known to encourage the attackers.
LGBTI activists in Jamaica are trying to appeal the anti-gay laws. In February 2012, The Guardian published an article stating that change may be coming for Jamaican gay communities because Prime Minister Portia Simpson-Miller proclaimed during her election campaign that she would allow politicians to vote against the ‘buggery law’. Dr Fenton Ferguson, Jamaica Health Minister supports the eradication of anti-gay laws as he believes the country needs to move forward and it would be for the “greater good”.
Reports from Human Rights Watch, amnesty international USA, the Asylum Research Consultancy,OHCHR, as well as from the United Kingdom Border Agency, all indicate a hostile environment for LGBTI people in Jamaica.
Evictions are also a reality for LGBTI Jamaicans. The Jamaica Star reported on July 16, 2010 that Kenneth Parchment, a man accused of being gay, had been beaten and chased out of his community, threatened to be killed if he tried to return. Indeed, evictions organized by entire communities through events like the “Gay Eradication Day” are a serious threat to LGBTI people, often leaving them homeless and injured if not dead.
The threat for Jamaican LBT women includes corrective rape.There have been many reports of women being physically, verbally but also sexually abused due to rumors about their sexual orientation. Fearful of the authorities, LGBTI victims of rape often do not report the crimes, making them even more vulnerable to further abuse.
Some popular reggae music has been explicitly homophobic, sometimes suggesting violence against gays and lesbians. Gay rights campaigns have been specifically targetingreggae stars with homophobic songs to “stop murder music”. Several reggae artists have already signed “the reggae compassionate act”, including Banton, Beenie Man, and Sizzla.
In spite of such victories, the violent discrimination of LGBTI people in Jamaica is still very real. Gay rights activists are at particular risk. On December 6, 2005, The Guardian reported a homophobic attack on a leading Jamaican Aids activist, Steve Harvey who was abducted and murdered. Brian Williamson was also murdered due to his activism. The director of J-Flag, Dane Lewis, is said to have “one of the country’s most dangerous jobs” precisely because of the violence faced by those who fight for LGBTI rights.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
Jamaica Forum for Lesbians, All-Sexuals and Gays (J-Flag)
J-FLAG’s mission is to work towards a Jamaican society in which the Human Rights and Equality of Lesbians, All-Sexuals, and Gays are guaranteed. To foster the acceptance and enrichment of the lives of same-gender-loving persons who have been, and continue to be, an integral part of society.
Stand Up for Jamaica
131 Tower Street, Kingston, Jamaica, West Indies
Tel: +18 76 94 88 973 or +18 76 35 6 0343 or +18 76 362 4771
Contact person: Maria Carla Gullotta
Contact person: George Young
Stand up for Jamaica is a not-for-profit organization founded in 2007 by some volunteers from the Group 105 of Amnesty International Italy, with the main purpose of providing practical help, particularly for court costs and basic necessities, to the inmates on death row in prisons in Jamaica, refugees, to help providing assistance to abused children and women or to accommodating any emergency in which it was necessary financial support, assistance and advice, and to inform the public about violations of human rights in the island.
Caribbean Vulnerable Communities (CVC)
CVC seeks to develop a cohesive and coordinated strategy to support work in the Caribbean with and on behalf of populations vulnerable to HIV and the stigma and discrimination associated with it.
COUNTRY OF ORIGIN SPECIALISTS
Lord Anthony Gifford QC
Anthony Gifford is an attorney-at-law who has worked on human rights issues in the United Kingdom and Jamaica. Since 1991 he has been settled in Jamaica where he is the senior partner in the firm of Gifford Thompson & Bright. He has been a member of the Council of IJCHR since 2006. In the UK he was actively involved in support for the African Liberation struggle, and in cases of racial discrimination, Irish prisoners and gay rights. He was lead counsel in the case of Dudgeon v UK, in which the European Court of Human Rights declared that anti-gay legislation in Northern Ireland had to be repealed. In Jamaica he has a wide-ranging legal practice including the representation of trade unions, Rastafarians, prisoners and others whose rights have been violated. He is lead counsel in a petition pending before the Inter-American Human Rights Commission against the Government of Jamaica seeking the repeal of Jamaica’s anti-gay laws. He is the author of The Passionate Advocate, a memoir of his work as a human rights lawyer.
Dr Scott Long
Dr Scott Long, Ph.D., Harvard, has led a long career in LGBTI rights activism focusing on Eastern Europe, Sub-Saharan Africa and the Middle East and North Africa. He has taught in Hungary, Romania and the Human Rights Program of Harvard Law School. Dr Scott Long was programme director of the International Gay and Lesbian Human Rights Commission (IGLHRC) from 1996 to 2002 and led the organisation’s advocacy at the 2001 UN General Assembly’s Special Session on HIV/AIDS. He founded and directed the Human Rights Watch’s LGBT Rights Program until 2010 and has produced reports on the situation of LGBTI persons in Egypt, Iraq and Iran, discrimination against binational same-sex couples in the United States, as well as working with LGBTI activists in Russia. Dr Scott Long blogs on human rights-related issues on http://paper-bird.net/.
Researched by: Tereza Maarova