Jamaica

Same-sex sexual activity is prohibited under the Offences Against the Person Act 1864, which criminalises acts of ‘buggery’ and ‘gross indecency’. This law carries a maximum penalty of ten years’ imprisonment with hard labour. Only men are criminalised under this law.

The Jamaican Constitution includes a ‘savings law clause’ – a constitutional provision that shields certain laws from being challenged in the courts if they were in force before the country’s adoption of its constitution. In 2011, a new bill of rights was introduced into the Constitution of Jamaica. A general savings law clause, which prevented all colonial laws from being constitutionally challenged, was removed and replaced with a savings clause that protects only specific laws, including those relating to sexual offences, from judicial scrutiny.

The law was inherited from the British during the colonial period, in which the English criminal law was imposed upon Jamaica. Jamaica retained the provision upon independence, prior to (partial) decriminalisation in England and Wales in 1967, and continues to criminalise same-sex sexual activity today.

There is little evidence of the law being enforced in recent years, however reports suggest threats of arrest are sometimes used to extort LGBT people. Nevertheless, the mere existence of this provision is itself a violation of human rights and underpins further acts of discrimination (see further).

There have been consistent reports of severe discrimination and violence being committed against LGBT people in recent years, including murder, assault, mob attacks, harassment, extortion, and denial of basic rights and services.

2023

In October 2023, the Supreme Court of Jamaica, in the case of Maurice Arnold Tomlinson v. the Attorney General of Jamaica, held that the savings law clause immunises the provisions of the Offences Against the Person Act 1864 criminalising homosexuality from judicial scrutiny. The case was brought by Maurice Arnold Tomlinson, a gay Jamaican man and Attorney-at-Law, who argued that the relevant legal provisions breached his Constitutional rights. The Court stated that the Jamaican Parliament had clearly intended to protect laws related to sexual offences from review for unconstitutionality, and so only Parliament could legislate to prevent the savings clause from having effect. Two of the judges who adjudicated the matter did, however, indicate their concern that the savings law clause prevented the Supreme Court from fulfilling its role of examining violations of fundamental rights under the Constitution.  

2021

In February 2021, in a case supported by the Human Dignity Trust, the Inter-American Commission on Human Rights (IACHR) released its decision in the case of Gareth Henry & Simone Carline Edwards v. Jamaica. Following almost a decade of litigation, the Commission found in favour of the complainants and their claim challenging the criminalisation of LGBT people in Jamaica, in the first-ever decision of its kind from the body. The decision was made by the Commission on 28 September 2019 but remained strictly confidential under their orders until 17 February 2021.

The Jamaican claimants in the case, Gareth Henry, a gay man living as a refugee in Canada, and Simone Edwards, a lesbian who was also forced to flee the country, had argued that sections of the Offences Against the Person Act 1864 – a British colonial-era law that outlaws the ‘abominable crime of buggery’ and acts of ‘gross indecency’ with punishments of up to ten years in prison with hard labour – violate their rights and legitimise violence towards the entire LGBT community in Jamaica.

The Commission makes comprehensive and wide-ranging recommendations to the government of Jamaica, including to:

1. Repeal the sections of Offences Against the Persons Act that criminalise private, consensual same-sex activity between adults.
2. Adopt or adapt legislation in order to prohibit and punish discrimination on the basis of sexual orientation, gender identity or expression or bodily diversity.
3. Carry out the collection and analysis of statistical data in a systematic and disaggregated manner, regarding the prevalence  and nature of violence and discrimination on the basis of sexual orientation, gender identity or expression or bodily diversity.
4. Conduct periodic and sustained training for all Jamaican public officials particularly judges, prosecutors, public defenders, and education, health and employment sectors, on sexual orientation, gender identity or expression or bodily diversity.

2019 

In October, a Joint Select Committee of Parliament decided not to recommend the criminalisation of non-consensual anal sex in a manner that would render it equivalent to the offence of ‘rape’. It stated that “Any amendment to that effect could be construed as an implied repeal of the offence of ‘buggery’. Accordingly (…) it was determined that the Committee did not have the power to effect that amendment or to recommend it, and the matter should properly be considered by Parliament.”

2018

In October, the IACHR accepted the admissibility of a Petition brought by Gareth Henry and Simone Edwards challenging Jamaica’s anti-buggery laws. The IACHR noted that “if proved, the alleged facts relating to threats to life, personal integrity, interference with private and family life, obstacles to the right of residence and movement, unequal treatment, lack of access to justice and judicial protection, and interference in access to health care, could establish possible violations of […] the American Convention [on Human Rights]”.

In November, the Court of Appeal ruled against the Public Defender being allowed to join a case involving the constitutional challenge to Jamaica’s criminalising provisions. The Public Defender argued that her office was created for the purpose of protecting and enforcing the rights of citizens. However, Justice Kissock Laing turned down the application stating that the Public Defender was seeking to insert herself into the centre of a nationally divisive issue and could lose the confidence of many Jamaicans if allowed to join the case.

2014

In July, an official at J-FLAG, a prominent LGBT NGO, withdrew the petition he had filed with the Supreme Court in 2013 challenging Jamaica’s anti-buggery law. In dropping the legal challenge, the petitioner cited threats against himself and his family.

In June, the country noted it could not join the consensus on the approval of an OAS resolution on sexual orientation, considering that: “the terminology of gender expression, as proposed, is ambiguous and has the potential to impose one value system over another. Furthermore, this term and other new terminologies used in the text, have not gained international acceptance nor are they defined in Jamaica’s domestic law.”

The Jamaican Sexual Offences Act was set to undergo review in 2014. The Act contains a provision which calls for review every five years. According to a report in the Jamaican Observer in June, Justice Minister Mark Golding said he “would not be surprised if the contending parties use the opportunity, provided by the review, to make their cases for and against repealing the buggery legislation.”

2011

A new Charter of Fundamental Rights was passed to expand the Bill of Rights. A general savings law clause, which prevented all colonial laws from being constitutionally challenged, was removed and replaced with a savings clause that protects only specific types of laws, including the offences that criminalise same-sex sexual acts, from judicial scrutiny.

2020

The US Department of State report found that the law criminalising same-sex sexual activity was only enforced in cases involving sexual assault on minors, and that consensual sexual activity was not prosecuted. This has consistently been the finding of these reports in recent years.

2014

A Human Rights Watch report found that prosecutions under the law are “rarely pursued”, but that LGBT are sometimes arrested and the law is used to extort LGBT people.

2011

In October, two men were arrested and charged for gross indecency and buggery for having sex in their car. Police officers detained them after finding used condoms in the car. Police attempted to extort money out of them, and subsequently took them to the police station where they were assaulted by detainees. They were released on bail and, following legal advice, accepted a plea bargain for gross indecency, paying a find of 250,000 Jamaican Dollars.

2023

In March, a national survey conducted by USAID and UNDP found that 83% of LGBT respondents faced violence due to prejudice and discrimination, 73% expressed fear of being assaulted, threatened or harassed because of their sexual orientation and/or gender identity and expression, and 54% reported knowing someone from the LGBT community who had died violently or was killed in the last 12 months due to their sexual orientation or gender identity.

2020

The US Department of State report notes that although discrimination and violence against LGBT people is prevalent, underreporting is a problem as LGBT people fear police discrimination or inaction if they report incidents. 

On 7 January, a 21 year old gender non-conforming Jamaican was hauled off a bus by the driver, conductor and fellow passengers after the driver said he didn’t want a “battyman” on his bus. They were then assaulted and left bleeding on the pavement, and were subsequently treated at Kingston Public Hospital for injuries to their lip, eye and back.

2019 

In September, the LGBT community was denied use of the Montego Bay Cultural Center for as part of Montego Bay Pride, on the basis that a government building could not be used to hold a function supporting ‘same-sex marriage’. Upon seeking an alternative venue, event organisers were mobbed by angry vendors shouting homophobic slurs. The event was ultimately cancelled due to the hostilities.

2017

The NGO J-FLAG reported that it received 19 reports of physical assault, five mob attacks, six cases in which police failed to respond to adequately to reports and one case of employment discrimination towards LGBT individuals.

2015

A YouTube video in March appeared to show the public execution of a young man stoned in the street by a crowd chanting anti-gay slurs.

Homeless gay teenagers made homeless by their families were reportedly chased out of a shelter by a mob in Kingston in April. The mob attacked them in a popular shopping venue in Kingston in order to “cleanse” the premises.

In July, the Jamaican Court of Appeal began hearing an appeal filed by activist Maurice Tomlinson, challenging national television stations that refused to air a “tolerance ad” promoting the human rights of LGBT people.

In October, a man was stabbed in a mob attack. The mob were allegedly looking for a homeless gay man known to live in the area, but attacked the man in a case of mistaken identity. The victim suffered a punctured lung and brain swelling.

2014 

In the six months to November 2014, the Jamaica Observer published a number of articles described by critics as overtly anti-gay. One story was headlined ‘The Pushback Against Gays Has Begun’; another ‘Homo Thugs!’; a third, unsourced story, alleged that a group of gay men had assaulted a male jogger. 

A Human Rights Watch report in October found that although prosecutions are “rarely pursued”, the laws offer legal sanction to discrimination, and LGBT people in Jamaica face “intolerable levels of violence and cannot rely on the police” for protection. The report documented 56 cases of violence against LGBT Jamaicans, and found evidence of LGBT people being refused housing or employment on the basis of their sexuality.

The US Department of State report found that during the year: “homophobia was widespread in the country, perpetuated by the country’s dancehall culture through the songs and the behaviour of some musicians. Lesbian, gay, bisexual, and transgender (LGBT) persons faced violence, harassment, and discrimination.” The report further noted instances of “serious human rights abuses”, including assault with deadly weapons, “corrective rape” of women accused of being lesbians, arbitrary detention, mob attacks, stabbings, harassment of gay and lesbian patients by hospital and prison staff, and targeted shootings of such persons. Within the prison system there were reports of violence against gay inmates, perpetrated by the wardens and by other inmates. Male prisoners identified as gay were held in a separate facility apparently for their own protection.

In June, an estimated 25,000 people attended a rally in Kingston in support of Jamaica’s anti-gay law.

In December, the IACHR found a series of systemic human rights violations against LGBT people in Jamaica, including arbitrary detention, extrajudicial killings, continued police impunity and lack of proper criminal investigations, sexual abuse in children’s homes, and continued violence, discrimination, and hostility. The Commission noted that homelessness and displacement of young LGBT men is a significant problem.

2013

In July, Dwayne Long Jones, a 17-year-old, was stabbed and shot to death and thrown into bushes during a public street-dance near Montego Bay. The attack was apparently prompted by the fact that he wore gender non-conforming attire and was dancing with someone of the same sex.

In August, a 41-year-old openly gay hospitality worker, Dean Moriah, was stabbed and had his home torched while he was still inside in an incident suspected to be a hate crime.

Also in August, two gay men from Old Harbour were forced to flee the scene of a car accident after witnesses realised the men were gay and pursued them. They were forced to take refuge in the local police station.

Another two separate incidents occurred on 1 August. A police officer, presumed to be gay, was mobbed in downtown Kingston. Fellow police officers were forced to disperse the crowds by firing into the air and using teargas. Two men from the parish of St Catherine were set upon by mobs.