December 9, 2015
Please note, an abbreviated version of this commentary was published earlier today by The Jamaica Gleaner under the headline “Why the sodomy law must go“.
On December 10, 2015, International Human Rights Day, a new constitutional challenge to the Jamaican anti-sodomy law is being launched in Kingston. This outdated holdover from the British colonial era is a violation of the human rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Jamaicans and a significant contributing factor in Jamaica’s critical HIV epidemic. Repealing this law is a matter of utmost importance for the health and human rights of all Jamaicans.
An archaic statute, the anti-sodomy law criminalizes all forms of intimacy between men, even if conducted in the privacy of their bedrooms. In 2005, two middle-aged men were arrested, charged and convicted when a passing police officer went out of his way to look through their upper-story window and viewed them in a compromising position. This was one of the relatively rare occasions on which the law was actually used to prosecute consenting adults; therefore, it’s hard to see how a law that is rarely used, in fact, could be as critical to the well-being of the nation and the fabric of society as its proponents claim.
But just because prosecutions are rare doesn’t mean the law has no impact. There is overwhelming evidence that it provides licence for abuse, discrimination and sometimes the assault, torture and murder of LGBTI Jamaicans. In fact, one senior police officer tasked with professionalizing the Jamaica Constabulary Force said that anti-gay attitudes will not change until the law changes.
There are also well recognized public health reasons to abolish this colonial relic, including the fact that its existence continues to drive men who have sex with men (MSM) underground and away from effective HIV prevention, treatment, care and support interventions. Partly as a consequence of this punitive and stigmatizing environment, Jamaica has the highest HIV prevalence rate among MSM in the western hemisphere, if not the world, about 33%.
However, the law does not only affect gay men and other MSM. The climate of homophobia that it engenders also contributes to abuse and violence against lesbians and bisexual women. The fact that the law does not criminalize these women is not a matter of concern for those in Jamaica who would wish to follow radical fundamentalist religious teachings and condemn practitioners of the “abomination” of sodomy. In 2012, a lesbian was the victim of “corrective rape” by a gang of thugs, during which one of her rapists used a knife to cut her vagina, stating that the reason she was a lesbian was because she was too “tight.
The claim being launched this Human Rights Day will be the second attempt to use local courts to abolish the law. The first case was withdrawn in 2014 when the claimant ended the matter because he feared for his life and that of his family after receiving death threats .
In the earlier case, over a dozen religious organizations were allowed to intervene as interested parties to support the government in defending the law — even though, in a free and democratic society, it is hard to see how particular religious groups’ teachings should be relevant in determining whether the state can imprison other people, including non-adherents, for their consensual sexual and intimate activity with their partners. And yet evangelical groups on the island, supported by their counterparts from the global north who have mostly lost the anti-gay culture wars in their home countries, have declared that they see the anti-sodomy law as a “guardian” of their religious liberties.
Freedom of religion is a fundamental right of every person in this country. Liberty, equality and privacy are also fundamental rights of every person in this country. Striking down the anti-sodomy laws in recognition of the fundamental rights of LGBTI citizens will not interfere in any way with the right of any person to practice or profess his or her religion.
While not all Jamaican fundamentalists necessarily support prying into the bedrooms of consenting adults, some of them feel that ending the ban on gay sex will open the door to marriage equality. The case of Kentucky county clerk Kim Davis, who was sanctioned for refusing to do her job and issue a marriage licence to same-sex couples in accordance with the ruling of the U.S. Supreme Court, is regularly cited as one of the dangers of the government or the courts respecting the human rights of LGBTI people by removing the threat of criminal prosecution and imprisonment.
There are many flaws in this argument, including the fact that, unlike the U.S. Constitution, the Jamaican Constitution bans the recognition of marriage by non-heterosexual couples. Therefore, even if the courts strike down the archaic, colonial criminal prohibition on consensual sex between men, only Parliament could end the ban on marriage equality. We hope and trust the courts will be alive to the misguided nature of the arguments we will no doubt hear from certain religious fundamentalists — and their irrelevance to the matter actually before the court.
This new challenge to Jamaica’s law criminalizing gay men arises out of how the law has evolved. Jamaica’s 2011 Charter of Fundamental Rights and Freedoms provides that any law concerning sexual offences that was in force before the Charter came into effect would be valid even if the law violated rights found in the Charter, such as privacy. However, in an earlier case from Jamaica, the Privy Council, Jamaica’s highest court, has ruled that if a law was changed, amended or modified in any way after the Charter, then the law is open to full constitutional review by the courts to see if complies with the Charter’s human rights provisions.
Jamaica’s 1864 Offences Against the Person Act (OAPA), which was passed before the Charter and thus “saved” from judicial review, criminalizes all forms of intimacy between men. However, the Sexual Offences Act (SOA) and its regulations came into effect well after the Charter – and these make the consequences of being convicted under the OAPA even harsher, including mandatory registration as a sex offender, notification to the police of your whereabouts at all times, and the requirement to always carry a pass or face a 12-month term of imprisonment and/or a JA$1 million fine. As a result, the law in Jamaica relating to buggery and gross indecency between men has been changed in significant ways, meaning that the law must conform to the rights that are ostensibly guaranteed by the Charter.
If successful, this case will set a very useful precedent across the Caribbean and the Commonwealth where anti-gay laws still exist in 40 of the 53 states, and where, in many instances, there does not appear to be the political will to repeal discriminatory colonial laws.
In 2012, the UN Special Envoy on AIDS in the Caribbean, Dr. Edward Greene, stated that regional leaders were committed to repealing anti-gay laws by 2014. That deadline slipped and no new date has yet been provided. The recently elected Commonwealth Secretary General, who was born in Dominica, has made decriminalization of sodomy across the Commonwealth one of the issues to be tackled during her tenure, but she also suggested that the matter would most likely not be taken up until 2018 at the earliest.
During her election campaign, Jamaica’s Prime Minister, the Most Honourable Portia Simpson-Miller, promised to call for a parliamentary review of the colonially-imposed laws criminalizing consensual sex between men. However, in April 2014, at the state opening of Parliament, she indicated that the review was no longer on the table as it “does not concern the majority of Jamaicans who are poor.” This, of course, ignores the obvious reality that the majority of LGBTI people in Jamaica are poor. Furthermore, the stigma and discrimination engendered by such laws are additional barriers to education and employment, further contributing to the poverty of LGBTI Jamaicans. And, of course, it is poor LGBTI people who often bear the greatest brunt of the harassment and violence to which continued criminalization contributes.
Such a statement also reveals an impoverished understanding of human rights: how is removing the unjust criminalization of hundreds of thousands of Jamaicans incompatible with the urgent human rights project of reducing and ending poverty? Surely a mature democracy can manage to advance human rights on multiple fronts at once. But the Prime Minister has so far declined to provide a new date for reviewing the law.
There are certainly senior Jamaican politicians, in both major parties, who understand the human rights and public health case for repealing the law. But as the country may soon be heading into what some expect will be a very close election, only a few courageous politicians will likely be willing to take a principled, human rights stand on controversial social topics such as homosexuality. Powerful religious lobby groups have certainly sought to pressure politicians — witness the large anti-gay rally recently held in Kingston at which those in attendance were repeatedly urged to contact their political representatives to drive home this point.
Striking down this odious, antiquated law is critical from the perspectives of health and human rights and personal liberty. The many Jamaicans — poor and not poor — whose lives are endangered by it cannot wait for a more favourable political climate. It may be up to the courts, as guardians of the Charter, to remedy this long-standing injustice.
Maurice Tomlinson is the claimant launching the constitutional challenge to the anti-sodomy law; he is a Jamaican lawyer and long-time human rights advocate, and senior policy analyst with the Canadian HIV/AIDS Legal Network. Jalna Broderick is the co-founder and director of programs and administration of Quality of Citizenship Jamaica, the only registered non-profit organization for lesbian and bisexual women in Jamaica, and a former program officer with Jamaica AIDS Support for Life.