Types of criminalisation

  • Criminalises sex between men
Commonwealth member state
Offences Against the Person Act 1864, Section 76 Unnatural Crime

Section 76 criminalises “buggery” between men with a penalty of up to ten years imprisonment, with or without hard labour.1

Offences Against the Person Act 1864, S. 77 Attempted Buggery or Indecent Assault

Section 77 prohibits attempts to commit buggery or an indecent assault on a man, with a penalty of up to seven years imprisonment, with or without hard labour.2

Offences Against the Person Act 1864, Section 79 Outrages on Decency

Section 79 criminalises acts of “gross indecency” between men, or the procurement or attempted procurement thereof, with a penalty of up to two years imprisonment, with or without hard labour.3

Enforcement

2017

The US Department of State Human Rights Report on Jamaica noted that the laws that prohibit acts of gross indecency and buggery were not used during the year to prosecute consensual same-sex sexual conduct between men. These laws were only used in cases of sexual assault and child molestation.

2013

In February, two men caught naked in their car were arrested. Each pleaded guilty and was convicted of gross indecency. The men were sentenced to a fine of $250,000 each or imprisonment for six months.

Statements by Public Figures

2018

In April, Prime Minister Andrew Holness said he would not object to a gay person serving in his cabinet. His comment was in response to a direct question on whether he would ban gay person from serving under him.

2015

In August, the Mayor of Kingston, Angela Brown-Burke, spoke at Jamaica’s first pride event. In an interview before the event she said: “I come from the point of view that I, as Mayor, have a responsibility to all the individuals of Kingston.” Jamaican Justice Minister, Mark Golding, also endorsed the event in a statement: “All Jamaicans, regardless of race, class, creed or indeed sexual orientation are citizens deserving of being treated with civility and human kindness.”

All Jamaicans, regardless of race, class, creed or indeed sexual orientation are citizens deserving of being treated with civility and human kindness.

Mark Golding, Justice Minister

In July, Minister for Education, Ronald Thwaites, announced the launch of a new manual aimed at reducing homophobic bullying in schools: “Bullying not only affects this society (LGBT), as we have heard reports of issues with regards to older students interfering with younger students, issues of gender also arise.”

An Anglican priest in Kingston, the Rev. Sean Major-Campbell, wrote an article in Jamaican paper, The Gleaner, in June in which he stated “Sexuality is a justice issue. Sexuality is a human-rights issue. Gender concerns are at the heart of how people live and move and have their being.” In December 2014, Pink News reported that Rev. Major-Campbell had received a “backlash from his congregation” after washing the feet of two lesbians to show respect for the LGBT community.

The Gleaner published an editorial supporting the U.S. Supreme Court’s marriage equality ruling and calling on Jamaica to take a similar course. A year earlier, in another editorial, The Gleaner stated that “[the prohibition on same-sex unions is] an assault on the principle of equality of people, people’s right to forge relationships, and their right to equal protection under the law”.

In its national report submitted for the UPR second cycle in April, the Jamaican delegation stated that the Jamaica Constabulary Force’s Diversity Policy “guides members of the police force in their professional dealings with persons of particular groups, including LGBTS.”

During a visit to Jamaica in April, Barack Obama took the opportunity of a town hall meeting at the University of the West Indies to recognise LGBT advocates from the country including Angeline Jackson, executive director for Quality of Citizenship Jamaica. “She cares about her Jamaica, and making it a place where everybody, no matter their color, or their class, or their sexual orientation, can live in equality and opportunity.”

2014

Then Leader of the Opposition in Jamaica, Andrew Holness, said in May that he would have no problem working with gay people in his cabinet. This stands in contrast to comments he made on 25 April, where he stated his opposition to repealing the country’s sodomy laws: My sentiments reflect the sentiments of the country.”

In April, Jamaica’s Minister of Health, Dr. Fenton Ferguson, spoke on the need to change social attitudes in order to fight HIV and AIDS within the country: “Strong cultural and religious beliefs have led to the isolation of some high-risk groups such as men who have sex with men and sex workers. It will not be easy to tackle these deeply embedded belief systems but we have to succeed [as] failure is not an option.”

2013

According to the Minister of Sport in Jamaica, gay athletes would not be discriminated against: “Sport is a right and a privilege for all Jamaicans right across the board… We don’t ask as a prerequisite what is your sexual preference, as long as you qualify and apply yourself.”

In September, Jamaican Assistant Police Commissioner, Devon Watkis, denied that a recent escalation of violence towards LGBT victims is specifically related to their sexuality: “I have no specific evidence outside of those isolated ones, that [LGBT people are] a target group as opposed to the ordinary citizen.”

2012

The popular Jamaican reggae musician, Diane Kingcame out as a lesbian in June. In the message, she wrote “honestly speaking, I have always been afraid to admit it openly, because of the unknown, of what it may cause negatively, to me, my career, my family and loved one.”

In relation to a constitutional challenge of the laws criminalising homosexuality where a number of Christian groups have successfully applied as interested parties, a small minority of religious figures have called for greater tolerance of homosexuals. One such leading theologian, Rev. Dr Clinton Chisholm, has reminded his countrymen that Jamaica is not a theocracy.

2011

Portia Simpson Miller, when standing for election as Prime Minister in December 2011, declared that “no one should be discriminated against because of their sexual orientation” and that she would allow a conscience vote to repeal laws criminalising homosexuality.

Persecution and Discrimination

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

In September, a gay man was rescued by police after an angry mob cornered him inside a bank parking lot in Half Way Tree in Jamaica. He was reportedly attacked by a mob while he was walking with three friends in the area.

Over 50 people attended the opening ceremony of Jamaica’s first pride festival, organised by J-FLAG, in August.

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 response to recommendations from Argentina and Slovenia during its second UPR cycle, Jamaica stated that it “considers it is committed to taking steps to end prejudice and stigmatisation affecting all Jamaicans, including [LGBTI] persons.”

Homeless gay teens thrown out 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.

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.

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.

2014

A Human Rights Watch report in October found that 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 Human Rights Report on Jamaica found that during the year: “homophobia was widespread in the country, perpetuated by the country’s dancehall culture through the songs and the behavior 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.

Human Rights Watch has described Jamaica as one of the most homophobic countries in the world. This was endorsed and fostered by politicians at the highest levels. For example in 2009, then Prime Minister Bruce Golding publicly stated that “[w]e are not going to yield to the pressure, whether that pressure comes from individual organisations, individuals, whether that pressure comes from foreign governments or groups of countries, to liberalise the laws as it relates to buggery.”

2013

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.

Five gay men were subject to attacks from fellow community members in August 2013. They were forced to take refuge in a dwelling until police came to disperse the crowds.

In the same month, a cross-dresser in St Catherine was attacked by a mob.

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.

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.

Legislative News

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’.

“Any amendment to that effect could be construed as an implied repeal of the offence of ‘buggery’. Accordingly, Mr. Speaker, 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.”

Minister of Justice, Delroy Chuck

2018

In November, the Court of Appeal ruled against the Public Defender being allowed to join a case involving the constitutional challenge to Jamaica’s anti-sodomy law. 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.

In October, the Inter American Commission on Human Rights (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]”.

2015

In May, during Jamaica’s second UPR cycle, Argentina, Germany, the USA and Slovenia recommended Jamaica decriminalise sexual activity between consenting adults of the same sex, which Jamaica noted. In response, Jamaica’s Minister of Justice stated that: “The Constitution of Jamaica guarantees basic human rights to all Jamaicans. There is no discrimination based on gender or sexual orientation. No law criminalizes orientation. No credible case of arbitrary detention or harassment of persons on the basis of sexual orientation has been presented.”4

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

In the same month, 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, 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 but included a savings clause, effectively precluding any constitutional challenge of laws criminalising homosexuality.

At its first UPR cycle, the government stressed it will take all necessary steps to avoid homophobic violence, but rejected the recommendations to repeal all legal provisions which may discriminate against or criminalise people based on their sexual orientation or gender identity.

Footnotes
1. Offences Against the Person Act 1864, S. 76 Unnatural Offences

“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.” Full text.

2. Offences Against the Person Act 1864, S. 77 Attempted Buggery or Indecent Assault

“Whosoever shall attempt to commit the said abominable crime, or shall be guilty of my assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.” Full text.

3. Offences Against the Person Act 1864, S. 79 Outrages on Decency

“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.” Full text.

4. National Statement to the UN Human Rights Council

UNHRC, National Statement to the 2nd Cycle of the UPR by Senator The Honourable Mark Golding, Minister Of Justice Of Jamaica, 13 May 2015

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