We were very concerned to note the government’s brief response to Question six (6), which thinly conceals its blatant disregard for the rights of LGBTI persons. This is mirrored its response during the Universal Periodic Review, which out rightly rejected recommendations to offer legal protection against discrimination based on sexual orientation. Their short statement in the List of Issues further fails to consider the extent to which LGBTI Survey of Living Conditions (SLC). (2009). Women’s Resource & Outreach Centre (WROC). (2011). Enacted 1 December 1975. Women’s Resource & Outreach Centre (WROC). (2011).
See paragraphs 101.18 to 101.25. In, Report of the Working Group on the Universal Periodic Review – Jamaica. (4 Jan 2011).
A/HRC/16/14. See also: page 6, paragraph (p). In, Report of the Working Group on the Universal Periodic Review – Jamaica Rather than guaranteeing the rights of all persons living in Jamaica, the newly enacted Charter of Fundamental Rights and Freedoms actually ensures the continued discrimination of certain groups of peoples, especially those belonging to the LGBTI community. It discriminates against same sex relationships and effectively reinforces the criminalization of sexual activities between consenting adults of the same sex by: (a) preserving existing laws that do not recognise same sex unions and explicitly states that these relationships cannot be legally recognised [Clause 18]; (b) withholding the right to freedom from discrimination on the grounds of sexual orientation; and, (c) providing the right of persons to communicate with family, spouse, and others while they are detained or arrested, but excluding same sex partners and common law unions [Clause 14(2)]
The Charter also deliberately retains the “buggery law,” which criminalizes sexual relations between consenting adults of the same sex.
Sections 76 and 77 of the Offences Against the Person Act criminalize acts of heterosexual and homosexual buggery:
Section 76: 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 labour for a term not
exceeding ten years.
Section 77: 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.
This violates the right of homosexual men to equality before the law and is thus incompatible with Article 2, Article 26, Article 16, and Article 17 of the Covenant. Persons who categorize themselves as belonging to the LGBTI social group are therefore not only discriminated against as a result of the attitudes of society, but face legally institutionalized discrimination within the jurisdiction. People who violate the rights of LGBTI Jamaicans feel their actions are justified because the society creates an enabling context for such human rights violations. Many use the buggery and gross indecency laws as their justification. This has been further supported by the Jamaican Parliament in the Charter of Fundamental Rights and Freedoms. Further, the Government effectively disallows any discussion to repeal any laws that discriminate against homosexuals by entrenching the provisions that prohibit discrimination within the jurisdiction on very limited grounds namely by reason of being male or female as opposed to recognizing discrimination by reason of sexual orientation, Statements made by politicians and Senior Police Officers reinforce the environment of discrimination. Prime Minister Golding was recorded stating, “I make no apology in saying decisively and emphatically that the government of Jamaica remains irrevocably opposed to the recognition, legitimization or acceptance of same-sex marriages or same-sex unions.” He went on to say, “there is the possibility that sometime in the future parliament could pass a law that says same-sex unions are legal but it won’t be done in this parliament. Not as long as I sit here.”
In comments made to the media, Senior Superintendent Fitz Bailey demonstrated the pervasiveness of discriminatory thinking and unacceptable labelling of homosexuals by stating that homosexuals were the largest perpetrators of organized crime in Jamaica despite there being no factual evidence to support this statement. Although his remarks were later withdrawn by the Jamaican Constabulary Force (JCF), both his and the Prime Minister’s remarks speak to the on-going bias and discrimination faced by the LGBTI community everyday.
The continued violation of the LGBTI rights of persons within Jamaican jurisdiction has the consequential affect of preventing the implementation of policies to address those living with HIV/AIDS who are homosexual. Further, the criminalization of consensual sexual activity prevents individuals from freely seeking health care (including HIV prevention), seeking legal advice and/or protection as a result of such discrimination, and leads to verbal and physical assaults, displacement from home and employment, sexual violence, and extortion, among others (see Question 6 in Annex A for case examples) In 2004 and 2010, the Jamaica Forum of Lesbians, All-Sexuals and Gays (J-FLAG) lobbied unsuccessfully for the inclusion of sexual orientation as illegitimate grounds for discrimination in the Charter of Fundamental Rights & Freedoms. Between January 2009 and June 2011, J-FLAG recorded 129 incidents in which the human rights of LGBTI persons were violated. The majority of cases were perpetrated against men who made 47 reports in 2011, 38 in 2010, and 22 in 2009.
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Females are seemingly at less risk of homophobic discrimination and/or violation, however when discovered can face severe repercussions (discussed more below). These violations are often termed as “punishment” for their “illegal” activities. The result is that lesbians are raped in extremely violent ways and their genitals mutilated, mirroring the practice of corrective rape of women experienced in some areas of Africa. There were four incidents perpetrated against females in 2011, nine in 2010 and four in 2009 (read about some of these cases in Annex A - Question 6). The situation facing LGBTI persons has become so acute that cases are being heard for asylum abroad. For instance, the United Kingdom Asylum and Immigration Tribunal recently decided that an applicant, from Jamaica, had established a “well-founded fear” of persecution contrary Article 3 of the Refugee Convention. It was accepted that “the appellant [had] established a risk of persecution and…The respondent (UK government legal representative) accepted that there was insufficient protection in Jamaica for lesbians who could establish that they were at real risk of persecution or serious harm.”
We would add that social stigma in Jamaica pervades other sections of society, such as communities that are socioeconomically deprived. The all persons under Jamaican jurisdiction of these communities are disproportionately the victims of arbitrary laws and excessive use of force and experience discrimination, abuse, and violation of human rights. In the same way that the LGBTI social group have no sufficient protection when raising complaints related to abuse by police, the culture of abuse experienced by persons in Jamaica renders many vulnerable people victims of a system that fails to protect.
Recommendations:
• The State party should:
a.) Immediately repeal the buggery law and add the text “non-consensual sex” to the existing text in Section 76 of the Offences Against the Person Act.
b.) Adopt a law on non-discrimination incorporating provisions formulated in accordance with Article
26. Repealing such laws as constitute undue interference with fundamental rights protected under the Covenant.
c.) Accept and adopt the recommendations arising from the Universal Periodic Review to:
i. Decriminalize sexual activity between consenting adults of the same sex, and address hate crimes on the grounds of sexual orientation and gender identity as a matter of urgency;
ii. Include in the Charter of Fundamental Rights and Freedoms, a specific prohibition of discrimination on the grounds of sexual orientation;
iii. Combat discrimination on the grounds of sexual orientation through awareness-raising campaigns and education programs in the schools;
iv. Immediately repeal all legal provisions constituting discrimination against individuals on the basis of their sexual orientation or gender identity.
DOWNLOAD THE PDF HEREJamaica: NGO submitted their report on the List of Issues
JAMAICA
Civil Society Report on the Implementation of the ICCPR
(Replies to the List of Issues CCPR/C/JAM/Q/3)
Hear the Children’s Cry
Independent Jamaican Council of Human Rights
Jamaica Forum of Lesbians, All-Sexuals and Gays (J-FLAG)
Jamaican Community of HIV Positive Women
Jamaicans for Justice (JFJ)
Mensana
Stand up for Jamaica
Women’s Resource and Outreach Centre (WROC)
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