Jamaica: Treatment of sexual minorities, including legislation, state protection and support services (2013-December 2015)
1. Legislation
According to sources, same-sex acts between men are criminalised in Jamaica (J-FLAG 16 Apr. 2014; Human Rights First July 2015, 4; Human Rights Watch 2014, 10). Sources report that same-sex acts between women are not criminalised in Jamaica (Human Rights Watch 2014, 11; J-FLAG 16 Apr. 2014). According to Human Rights Watch, the law does not refer directly to transgender people (2014, 10).
The 1864 Offences Against the Person Act [last amended in 2010] contains the following provisions, also referred to as buggery (Human Rights Watch 2014, 10; J-FLAG 16 Apr. 2014) or [anti-]sodomy laws (Human Rights First July 2015, 4; Human Rights Watch 2014, 10):
Unnatural Offences
76. Whosever 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.
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 exciding seven years, with or without hard labour.
…
Outrages on Decency
79. 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. (Jamaica 1864, Art. 76-77, 79)
According to the Jamaica Forum for Lesbians, All-Sexuals and Gays (J-FLAG), an NGO that promotes human rights of sexual minorities in Jamaica (ibid. n.d.a), acts of buggery refer to anal intercourse between men (ibid. 16 Apr. 2014). The US Department of State's Country Reports on Human Rights Practices for 2014 specify that the "'acts of gross indecency' [are] (generally interpreted as any kind of physical intimacy) between persons of the same sex" (US 2 July 2015, 21).
According to sources, enforcement of the anti-buggery laws remains rare in practice (Aids Free World and Canadian HIV/AIDS Legal Network Dec. 2015, 1; Human Rights Watch 2014, 10). Sources report that despite a lack of enforcement, the existence of these laws creates a climate that sanctions violence and discrimination against sexual minorities (AI 17 May 2013; Human Rights First July 2015, 4; Human Rights Watch 2014, 10).
Sources note that in 2013, a gay rights activist filed a legal challenge against the anti-buggery laws in Jamaica (Erasing 76 Crimes 12 Feb. 2013; Toronto Star 11 Aug. 2013; Aids-Free World and J-FLAG 29 Aug. 2014). The Toronto Star quotes the activist as stating that the law propagates homophobia and violates his right to privacy that is guaranteed in Jamaica's Charter of Rights (11 Aug. 2013). According to sources, the activist subsequently withdrew his lawsuit in 2014 because of threats received by himself and his family (Aids-Free World and J-FLAG 29 Aug. 2014; US 2 July 2015, 21).
In December 2015, a similar challenge to the existing law was launched by another Jamaican gay rights activist who is challenging the constitutionality of laws that criminalize consensual sex between men (Canadian HIV/ AIDS Legal Network 9 Dec. 2015; Erasing 76 Crimes 8 Dec. 2015; Reuters 10 Dec. 2015). Further information on the status of the case could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
In 2011, Aids-Free World, an international advocacy organisation working towards the eradication of HIV/AIDS (Aids-Free World n.d.), filed a petition against the anti-buggery laws in Jamaica before the Inter-American Commission on Human Rights (IACHR) (ibid. 26 Oct. 2011). In correspondence with the Research Directorate, a Senior Policy Analyst at the Canadian HIV/AIDS Legal Network, a research, legal advocacy, and public education organization which promotes the human rights of people living with and vulnerable to HIV/AIDS (Canadian HIV/AIDS Legal Network n.d.), stated that the petition is in an admissibility stage (ibid. 18 Jan. 2016).
Human Rights First, “a nonprofit, nonpartisan international human rights organization based in New York and Washington D.C.” (July 2015), indicates that the Jamaican Charter of Fundamental Rights and Freedoms does not provide protection from discrimination based on sexual orientation (July 2015, 4-5). J-FLAG notes that "[o]n the face of it," the Charter of Rights affords rights to all Jamaicans, including LGBT citizens; however, "the Charter’s homophobia is very much evident. The decision to use the words 'on the basis of being male or female' in section 13(3)(i) was a deliberate attempt to ensure that sexual orientation discrimination was not prohibited" (J-FLAG June 2015, 17).
2. Societal Attitudes and Discrimination
According to Country Reports for 2014, homophobia is "widespread" in Jamaica (US 2 July 2015, 21). Reuters reports that homophobia is a "cultural norm" (18 Jan. 2014) and other sources note that homophobia continues to be perpetuated by the country's music, political and religious figures (AI 17 May 2013; Human Rights Watch 2014, 11, 12, 14, 17), and by the media (Human Rights First July 2015, 13; Human Rights Watch 2014, 12). According to Human Rights First, sexual minorities "face both general societal discrimination as well as discrimination in access to services, including healthcare, housing, and employment" (Human Rights First July 2015, 8).
In 2014, a coalition of churches organized a rally in St. Andrew against the possible repeal of the anti-buggery law (The Gleaner 30 June 2014; Jamaica Observer 30 June 2014). The Jamaica Observer notes that according to the police, the rally was attended by 25,000 people (30 June 2014). According to a poll conducted on a sample of 1,208 participants in September 2014, commissioned by the Jamaican newspaper The Gleaner, 91 percent of respondents said lawmakers should not repeal the country's buggery law (6 Oct. 2014).
2.1 Employment
Human Rights First indicates that "employment discrimination continues to be a significant issue for the LGBT community" (July 2015, 5). In correspondence with the Research Directorate, a Professor of anthropology at the City University of New York, who specialises in gender, sexuality and human rights studies, and has conducted research on Jamaica, stated that while the country has a high unemployment rate in general, members of sexual minorities who live in the open are "basically unemployable" (Professor 9 Jan. 2016).
2.2 Housing
According to sources, sexual minorities face evictions or are chased out of their homes by family members (J-FLAG July 2014, 1; Human Rights Watch 2014, 43). Sources also indicate that LGBT persons, particularly youth, experience high levels of homelessness (Human Rights First July 2015, 15; Human Rights Watch 2014, 45). According to the Caribbean Vulnerable Communities Coalition (CVC), a project of Caribbean NGOs working with groups that are vulnerable to HIV/AIDS (CVC n.d.), youth identifying as sexual minorities account for 5 to 10 percent of Jamaica's total youth population but make up to 40 percent of its homeless population (ibid. Nov. 2011). Sources report that some LGBT youth who are kicked out of their homes end up living in Kingston's sewer system (Erasing 76 Crimes 6 Jan. 2015; Human Rights First July 2015, 15; NOW 26 June 2014) and engage in robberies (ibid.) or in sex work as a mean of survival (Canadian HIV/AIDS Legal Network. 18 Jan. 2016; Human Rights First July 2015, 15; Jamaica Observer 3 Nov. 2013).
2.3 Healthcare
In a November 2014 interview with the Antillean Media Group (AMG), J-FLAG's Executive Director stated that due to sensitization training "reports of direct discrimination [in healthcare] are becoming more and more infrequent" (AMG 9 Nov. 2014). In contrast, the Senior Policy Analyst affiliated with the Canadian HIV/AIDS Legal Network stated that there is "a significant challenge with gender non-conforming persons seeking and receiving appropriate anti-HIV interventions" (Canadian HIV/AIDS Legal Network 18 Jan. 2016).
The Senior Policy Analyst further noted that
[w]hen the group [of homeless LGBT youth in Kingston] was last tested, nearly 90% of them were positive for HIV. However, few, if any, of them were on effective ARV [antiretroviral] treatment. These youth were not inclined to visit the health clinics because of the treatment by porters and other hospital staff. Even getting them to the clinics proved difficult. The youth were so verbally and physically assaulted on public transportation that they refuse to go by that route. Taxis charge a premium to transport them and sometimes would only do one way trips, leaving the youth stranded at the clinics. (18 Jan. 2016)
2.4 Social Events
Sources report that in August 2015 the first gay pride event, PRiDE JA, took place in Jamaica (AMG 7 Aug. 2015; The Guardian 10 Aug. 2015; Jamaica Observer 3 Aug. 2015). Sources further note that the Mayor of Kingston attended the opening ceremony (Jamaica Observer 3 Aug. 2015; Out Caribe 3 Aug. 2015), and that the event was endorsed by the Minister of Justice (AMG 11 Aug. 2015; Jamaica 2015; Washington Blade 31 July 2015).
According to the Washington Blade, an American newspaper covering issues relating to sexual minorities (Washington Blade n.d.), the organisers of PRiDE JA remained preoccupied about the safety of attendees (ibid. 31 July 2015). The Gleaner also reports that due to security concerns, the celebration did not include a public parade (July 27, 2015). The same source quotes the Executive Director of J-FLAG as stating that the country was "not ready" for a parade (The Gleaner 30 June 2015). According to The Gleaner, "some years ago, an attempt to host a gay parade was thwarted after anti-gay supporters reportedly planned attacks against marchers" (ibid.).
An article by the Associated Press (AP) states that, according to a representative of J-FLAG, "more and more" persons belonging to sexual minorities are willing to be visible and that even though "there's ridicule on the streets and some people look at you and laugh… it's not as violent as it was" (The Guardian 4 Aug. 2015). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
2.5 Incidents of Violence
Amnesty International (AI) reports that violence and harassment against sexual minorities continue to be a problem in Jamaica (AI 2015, 2014). Human Rights Watch similarly states that physical and sexual violence is "part of the lived reality" for many members of sexual minorities and that "the level of brutality leads many to fear what could happen if their sexual orientation or gender identity is disclosed" (Human Rights Watch 2014, 21). According to J-FLAG, 63 incidents of violence against sexual minorities were reported to the organisation in 2013 (J-FLAG 2014, 16). Half of the incidents reported took place in the Kingston and St Andrew, and St James area, with incidents in St Catherine, Clarendon and Manchester constituting a "significant portion" of the remaining cases (ibid.). In 2014, 80 incidents of violence were reported to J-FLAG, including physical assault, threats and intimidation, blackmail, sexual violence, kidnapping, discrimination and displacement (ibid. 2015, 14).
Sources report that in July 2013, a transgender teenager was murdered by a mob in St. James after attending a party dressed as a woman (Erasing 76 Crimes 23 July 2015; Human Rights Watch 2014, 1; Jamaica Observer 29 July 2013). According to the radio station Irie FM, the mob "chopped and stabbed him to death" after party-goers discovered that the teenager was a man (Erasing 76 Crimes 23 July 2013). The murder was condemned by the Minister of Justice who called on the police to "spare no efforts in bringing the perpetrators to justice" (Jamaica Observer 29 July 2013). According to an August 2015 article by The Guardian, the murder remains unsolved (10 Aug. 2015).
Human Rights First quotes a senior US official in Jamaica as stating that mob violence against sexual minorities is a "severe problem" in the country (Human Rights First 2015, 7).
Incidents of reported mob attacks against LGBT people include the following:
- On 22 September 2015, a gay man was rescued by a police after being cornered by a mob in a parking lot in Half Way Tree (Loop 22 Sept. 2015);
- On 15 April 2015, customers of a shopping venue in Kingston "decided to 'cleanse out' the premises of gays" (Erasing 76 Crimes 16 Apr. 2015);
- On 10 August 2013, police rescued a cross-dresser "after an angry mob who had seen him in the community threatened to flog him" (The Jamaica Star 13 Aug. 2013).
Sources report that sexual violence such as "corrective rape" has been used on bisexual (The Gleaner 3 Dec. 2014) and lesbian women (ibid.; Jamaica Observer 28 Apr. 2015). J-FLAG received reports of 8 cases of sexual violence in 2013, of which 7 were submitted by women (J-FLAG 2014, 16). According to an online survey conducted by Quality of Citizenship Jamaica (QCJ), an NGO that works with women belonging to sexual minority groups to provide them with support and help them "navigate the Jamaican society" (QCJ n.d.), of 103 participants surveyed, 47 percent of respondents were either threatened with or experienced acts of sexual violence or harassment by men, including acts intended to "straighten them out" (The Gleaner 3 Dec. 2014). The survey also indicates that 77 percent of victims did not report the incidents to the police (ibid).
3. State Protection
3.1 Police
According to Human Rights Watch, Jamaica experiences high crime rates and citizens express mistrust towards the police and their effectiveness (2014, 2). The same source indicates that "bias based specifically on gender identity or sexual orientation directly contributes to the inadequate police response" (ibid., 28). Following interviews with LGBT persons in 2013, Human Rights Watch notes that most respondents indicated that they did not report incidents of violence to the police because they believed that police would not take any action (ibid. 2014, 17). Country Reports for 2014 states that while individual police officers "showed sympathy" and worked on cases involving sexual minorities, NGOs reported that "the police force, in general, did not recognize the extent and seriousness of bullying and violence directed against members of the LGBT community and failed to investigate such incidents" (US 2 July 2015, 22).
Conversely, in its 2013 activity report, J-FLAG states that "trust towards police has increased" among members of sexual minorities and that "in every [police] division, at least one ally can be identified that is willing and able to deal with matters concerning sexual and gender minorities" (J-FLAG 2014, 10). J-FLAG also reports that police officers have protected sexual minorities from mob attacks "even placing themselves in harm's way" (ibid.). In its 2014 annual report, the same source cites a case whereby police officers protected an LGBT teenager from a mob attack which occurred in May Pen in 2014 (ibid. 2015, 5). According to the Jamaican TV program Prime Time News, in June 2014 in May Pen, police rescued a gay man from a shopping mall where he sought refuge after a crowd turned against him for reportedly wearing lipstick (Erasing 76 Crimes 16 June 2014). According to the information obtained by the IACHR, "there have been efforts to investigate thoroughly and impartially acts of discrimination based on sexual orientation and gender identity;" however, Jamaica does not have a specific unit responsible for investigating hate crimes (OAS 2015, para. 194).
Sources indicate that in 2011, Jamaica’s police force adopted a Policy on Diversity, which includes guidelines on dealing with sexual minorities as a protected group (Human Rights First July 2015, 9; Human Rights Watch 2014, 48-49; Jamaica 25 Aug. 2011); “directs police” to ensure that sexual minorities are able to file police reports (Human Rights First July 2015, 9; Jamaica 25 Aug. 2011); and “prohibits discrimination and establishes specific protections on the grounds of sexual orientation” (Human Rights Watch 2014, 49). The policy states that the "subject of diversity" must be taught in the police academy and in the staff college; divisional commanders are responsible for ensuring that their personnel are familiar with, and adhere to the policy (Jamaica 25 Aug. 2011, 3). According to information provided by the Government of Jamaica in May 2015, the policy is taught as part of the police recruitment training, and "refresher courses" are offered to serving officers (Jamaica 15 May 2015, para.79). The Jamaican Information Service reports that in September 2015, 230 new police recruits participated in two-day diversity training sessions that included interventions involving sexual minorities (ibid. 15 Oct. 2015). According to a Deputy Commissioner of Police, this training will be offered to future recruits (ibid.). The Jamaican Observer also states that two-day training sessions on diversity were delivered to 50 police officers in June 2015 (22 June 2015).
Human Rights Watch indicates that police officers have perpetrated violence against sexual minorities themselves (2014, 33). Similarly, according to the IACHR,
[p]etitioners reported abuse and discrimination against LGBTI individuals who were either ignored or laughed at when they attempted to report acts of violence, or were themselves the direct victims of police abuse, including arbitrary detention, blackmail, extortion, threats, and cruel and degrading treatment. (OAS 13 May 2014)
Human Rights Watch observes that while cases of police violence appear to have decreased between 2004 and 2014, "the persistence of even isolated cases is of great concern given the police’s role as a source of protection" (2014, 33). Sources also indicate that police extortion of LGBT people in Jamaica is a problem (Human Rights First July 2015, 1; Human Rights Watch 2014, 36-38).
3.2 Judiciary
According to a report published by J-FLAG in December 2013, "there seems to have been little or no thorough investigation and/or prosecutions in the majority of incidents [against LGBT people] except in cases deemed 'high profile'" (Dec. 2013, 3).
IACHR indicates that Jamaica did not offer training programs to criminal justice officials, including judges, on the rights of sexual minorities (OAS 2015, para. 186). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
4. Support Services
Established in 1998, J-FLAG describes itself as "the first human rights organization in the history of Jamaica to serve the needs of LGBT peoples" (n.d.a). The organisation is non-profit and carries out advocacy and educational initiatives while providing support services such as crisis intervention for distressed sexual minorities (ibid.), and a telephone helpline (ibid. n.d.b). In 2014 the organisation assisted 448 persons, including 368 men and 80 women, through the following initiatives: outreach (203), HIV prevention (158) and testing (7), counselling (116), follow-up (102), referrals (57), asylum support (23), medical assistance (8), and housing assistance (3) (ibid. 2015, 14). J-FLAG reports that in February 2014, they launched a parent support group that works to reintegrate displaced and homeless LGBT youth with their families (ibid. 2015, 13). According to the same organization, 16 other NGOs provide different support services to members of sexual minorities in Jamaica (J-FLAG Nov. 2014, 24-26). A list of the NGOs and the support services that they offer is attached to this Response.
According to sources, Colour Pink Group is an organization that works to provide homeless LGBT youth with skills training (Human Rights First July 2015, 14; Jamaica Observer 27 July 2014). Human Rights First also states that the organization provides internship opportunities and employment assistance (July 2015, 14).
Sources report that Dwayne's House is an NGO that provides food and clothing, as well as medical and legal services to homeless LGBT youth (ILGA 22 Apr. 2014; NOW 26 June 2014). According to an article by the online portal of Toronto based NOW Magazine, Dwayne's House was serving 20 to 40 sexual minority youth living in the sewer system (NOW 26 June 2014). A May 2015 article published by The Gleaner notes that the organisation is waiting to be provided with land to start the construction of a shelter (The Gleaner 19 May 2015).
4.1 Health Care Services
The HIV prevention program of the Jamaican Ministry of Health identifies men who have sex with men (MSM) as one of the "at risk" populations that the program targets (Jamaica n.d.). Between July 2013 and June 2014, in partnership with the Ministry of Health and Jamaica's National Family Planning Board (NFPB), J-FLAG trained 60 public health care workers and six staff of the NFPB on providing health services to members of sexual minorities (J-FLAG 2015, 18).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
References
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_____. 30 June 2014. Javene Skyers. "Thousands Rally Against Tossing Out Buggery Act; Shout Out for Clean, Righteous Living." <http://www.jamaicaobserver.com/news/No-to-homo-agenda_17050490> [Accessed 20 Jan. 2016]
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Reuters. 10 December 2015. Rebekah Kebede. "Jamaica Activist Challenges Anti-gay Law in Bid to End Violence, Discrimination." Edited by Belinda Goldsmith. <http://www.reuters.com/article/us-jamaica-lgbt-reform-idUSKBN0TT30Q20151210> [Accessed 4 Jan. 2015]
_____. 18 January 2014. Aileen Torres-Bennett. "LGBT Tolerance Growing in Jamaica, Push to Repeal of Anti-gay Law." <http://www.reuters.com/article/us-jamaica-lgbt-idUSBREA0H0BI20140118> [Accessed 18 Jan. 2015]
Toronto Star. 11 August 2013. Jennifer Quinn. "A Dangerous Place to be Gay." (Factiva)
Washington Blade. 31 July 2015. Michael K. Lavers. "Mayor of Jamaican Capital to Speak at Pride Event." <http://www.washingtonblade.com/2015/07/31/mayor-of-jamaican-capital-to-speak-at-pride-event/> [Accessed 11 Jan. 2016]
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Additional Sources Consulted
Oral sources: AIDS-Free World; CariFlags; Jamaica Forum for Lesbians, All-Sexuals and Gays; Professors at Goldsmiths University of London (UK), University of the West Indies (Jamaica) and York University (Canada); Quality of Citizenship Jamaica.
Internet sites, including: BBC; Canada – Department of Global Affairs, Embassy in Jamaica; ecoi.net; Envisioning Global LGBT Rights; Human Dignity Trust; International Gay and Lesbian Human Rights Commission; Jamaica – Member of Parliament Julian Robinson, Ministries of Justice and Youth and Culture; Pink News; United Nations – Free & Equal, Office on Drugs and Crime, Refworld; United States – Embassy in Jamaica, US Agency for International Development.
Attachment
J-FLAG. November 2014. Renée Johnson. "Mapping of NGOs and Services." Rapid Assessment of the Efficacy of Services Delivered by Non-governmental Organisations. <http://jflag.org/wp-content/uploads/2014/08/NGO-Rapid-Assessment.pdf> [Accessed 20 Jan. 2016]