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Jamaica: Challenge to Law on Homosexuality

(Dec. 14, 2015) On December 10, 2015, Jamaican human rights activist Maurice Tomlinson filed a complaint with the country’s Supreme Court of Judicature against some provisions of the Offences Against the Person Act that outlaw sexual conduct between two consenting men.  (Ashley Hogan, Jamaica Rights Activist Challenges Homosexuality Ban, PAPER CHASE (Dec. 10, 2015); The Offences Against the Person Act (1864, as amended), Jamaica’s Child Development Agency website.)  Tomlinson stated “[t]he law is a gross violation of my human rights and those of all LGBTI people in my country,” and added that in addition to infringing on those rights, the Act fuels violence against homosexuals in Jamaica.  (Press Release, Canadian HIV/AIDS Legal Network, Jamaican Gay Activist Launches Constitutional Challenge (Dec. 9, 2015).)  He also noted that “criminalization and marginalization of consensual sex drives gay men and other men who have sex with men underground, away from desperately needed HIV prevention, treatment and testing services.” (Id.)

Legal Provisions Challenged

The sections of the Act that Tomlinson is challenging include provisions against “the abominable crime of buggery, committed either with mankind or with any animal,” which is punished on conviction with imprisonment and hard labor for up to ten years (The Offences Against the Person Act, § 76).  Attempts to commit that crime or indecent assault on a male are considered misdemeanors that can be punished with imprisonment for up to seven years, with or without hard labor (id.).  The complaint calls into question one additional section of the Act, which states that any male committing “any act of gross indecency with another male” is guilty of a misdemeanor to be punished, at the discretion of the court, with up to two years in prison; that term may include hard labor (id. § 79).

Tomlinson’s complaint also cites a 2011 act and 2012 regulations that together create a system of registration of sexual offenders, requiring them to carry a pass and to notify authorities of any change of address.  (The Sexual Offences Act (June 30, 2011), Ministry of Justice website; The Sexual Offences (Registration of Sex Offenders) Regulations, 2012 (Oct. 3, 2012), Parliament website.)  Failure to comply with the requirements connected to the registry carries a penalty of 12 months of imprisonment, a J$1 million (about US$8,300) fine, or both.  (The Sexual Offences Act, § 35.)

Tomlinson argues that the legal norms in question violate provisions of Jamaica’s Charter of Fundamental Rights and Freedoms on the right to liberty and freedom of the person, privacy, and nondiscrimination.  (The Charter of Fundamental Rights and Freedoms Act (Constitutional Amendment Act) 2011, § 2 (amending Ch. III of the Constitution), Parliament website; The Jamaica (Constitution) Order in Council 1962 (last updated July 9, 2011), CONSTITUTION FINDER.)

Previous Case

Tomlinson, who is an attorney and works for the Canadian HIV/AIDS Legal Network, represented another activist in a similar case in June 2013.  The plaintiff in that case, Javed Jaghai, eventually withdrew his complaint due to safety concerns, as violence against homosexuals was increasing in Jamaica at the time.  (Emine Saner, Gay Rights Around the World: The Best and Worst Countries for Equality, GUARDIAN (July 30, 2013); Jamaican Gay Rights Activist Challenges Law Against Sex Between Men, GUARDIAN (Dec. 9, 2015).)