CASE NAME Gareth Henry v. Jamaica
COUNTRY                                    Jamaica
COURT/ TRIBUNAL Inter-American Commission on Human Rights
STATUS The Inter-American Commission has determined that the Petition is admissible. It will now be considered on its merits.

Summary

Mr Henry is an LGBT human rights defender from Jamaica who had to claim asylum in Canada due to the persecution he faced in Jamaica as a result of his sexual orientation and LGBT advocacy. Laws in Jamaica that render private consensual sexual intimacy between adult males a criminal offence directly enabled the discrimination, threats, violence and lack of State protection that Mr Henry faced. Mr Henry seeks a declaration that these laws violate Jamaica’s legal obligations under the American Convention on Human Rights. Ms Simone Edwards is a lesbian who survived being shot twice in homophobic violence and has not received any adequate protection of the State. She was granted asylum in The Netherlands and has joined Mr Henry’s petition as an additional victim of Jamaica’s human rights violations against LGBT people.

Case Details

Laws criminalising male homosexual conduct were introduced to Jamaica by the British colonial authority in the 19th century. Sections 76, 77 and 79 of the Offences Against the Person Act 1864 (the ‘anti-homosexuality laws’) proscribe all forms of consensual sexual activity between adult males. Anyone convicted of ‘buggery’ faces a sentence of up to ten years imprisonment and hard labour. Any male convicted of ‘gross indecency’ with another male faces a sentence of up to two years imprisonment with or without hard labour.

A 2011 amendment to the Jamaican Constitution, which enacts the Charter of Fundamental Rights and Freedoms, purports to shield the anti-homosexuality laws from a constitutional challenge in domestic courts (the ‘savings law clause’).

Combined, these provisions deny gay men both recognition as equal citizens and the protection of the State. They also indirectly stigmatise and discriminate against lesbian women, bisexual people and trans people, who face similar human rights abuses from both State and non-State actors. The laws foster and perpetuate an environment in which all people engaging in same-sex intimacy are marginalised.

This has resulted in serious violence and discrimination, rising to the level of persecution, committed by both citizens and organs of the state, such as the police, against those perceived as homosexual. Many LGBT people consider it futile even reporting incidents of violence or discrimination to the authorities given the hostile environment.

The Parties

Mr Gareth Henry, a Jamaican citizen currently under refugee protection in Canada, is the Petitioner and victim in this case. He is a prominent advocate for the rights of LGBT people. In Jamaica he was subjected to serious abuse, discrimination and persecution because of his homosexuality and activism. From a young age he was forced to move home several times to escape the violence he was subjected to. He has been beaten, harassed, subjected to verbal abuse, had stones thrown at him and witnessed attacks on numerous other LGBT people, including close friends, some of which have been fatal. He experienced an attack while participating in HIV and AIDS awareness activities. On occasion police officers themselves have been involved in attacks; for example, in February 2007 Mr Henry was beaten by four police officers in front of an angry mob of around 200 people after he refused to answer a question about whether he was a ‘batty man’ (a pejorative slang term for a gay man). Because of the constant abuse, which culminated in a death threat, Mr Henry was forced to leave Jamaica in January 2008. He was granted asylum by Canada in June 2008. His mother was also forced to flee Jamaica and join him in April 2008, followed by his sister and her young family in March 2013. They have all been granted asylum by Canada.

Ms Simone Edwards is an additional victim in the Petition, who after years of discrimination, isolation and abuse as a lesbian woman was shot twice in anti-gay violence along with two of her brothers, one of whom is gay. She survived the shooting but had to have surgery to remove parts of her internal organs. The known perpetrators were never prosecuted and remain in the community. Ms Edwards finally escaped the homophobic environment in Jamaica, in fear of both her life and that of her young daughter, and obtained asylum in the Netherlands where they are now both safe from anti-LGBT human rights abuses. She and Mr Henry argue that Jamaica’s anti-gay laws and lack of State protection have a direct impact on everyone in the LGBT community, contrary to international law binding on Jamaica.

The case is against the State of Jamaica.

Applicable Law

The Petition alleges a number of violations by Jamaica of its legal obligations under the American Convention on Human Rights (‘ACHR’) and the American Declaration on the Rights of Man (‘Declaration’). These include:

RIGHTS PROVISIONS                                                                      
Obligation to adopt protective legislation, to eliminate existing discriminatory measures and refrain from adopting new discriminatory measures

Articles 1,24 ACHR

Article II Declaration

Right to life

Article 4 ACHR

Article I Declaration

Right to humane treatment Article 5 ACHR
Right to privacy

Article 11 ACHR

Article V and IX Delaration

Right to freedom of thought and expression

Article 13 ACHR

Article XXII Declaration

Right to freedom of association

Article 16 ACHR

Article XXII Declaration

Right to family life

Article 17.1 ACHR

Article V Declaration

Right to freedom of movement and residence

Article 22 ACHR

Article VIII Declaration

Right to judicial protection from violations of fundamental rights

Article 25 ACHR

Article XVIII Declaration

Right to health and well-being

Article 26 ACHR

Article XI Declaration

 

Relief Sought 

The Petition seeks a declaration from the Inter-American Commission on Human Rights that:

  • maintaining anti-homosexuality laws violates Jamaica’s legal obligations under the relevant international instruments;
  • the savings law clause that purports to shield the anti-homosexuality laws from judicial review violates Jamaica’s legal obligations under the relevant international instruments;
  • maintaining and enforcing the buggery laws, and enacting the Constitutional Amendment have contributed to a social and political environment which is hostile and contrary to the rights of homosexuals;
  • the government has failed to take adequate steps to protect the rights and well-being of Jamaican citizens who are homosexual from mistreatment.

The Petition further seeks an instruction from the Commission to Jamaica to repeal the anti-homosexuality laws and the savings law clause and to take adequate steps to protect its homosexual citizens, consistent with its international human rights law obligations.

Government Response

The Government of Jamaica has objected to the admissibility of the Petition and is defending its anti-gay laws.

The Process

On 2 July 2018, the Inter-American Commission on Human Rights issued its decision on the admissibility of the Petition, determining that it is admissible. In doing so, the Commission 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 response to this significant development, Téa Braun, Director of HDT, said:

‘Laws criminalising sexual activity between two consenting adults in their own homes have no place in a society that values and protects dignity, privacy and equality. They only serve to foment discrimination and violence towards the wider LGBT community in Jamaica.

For that reason, the Commission’s decision to admit this case for consideration on its merits is hugely welcome.  It is a significant step forward that we hope will eventually lead to a repeal of these discriminatory laws.’

The Petition will now be considered on its merits by reference to the substance of the legal arguments, and the Commission will determine whether and how Jamaica’s maintenance of these laws violates rights under the American Convention on Human Rights (which Jamaica has ratified) and the American Declaration on the Rights and Duties of Man. This entire process can take several years.

The Inter-American Commission can make recommendations to the Government of Jamaica to repeal the offending laws, to ensure proper protection of LGBT citizens from discrimination and violence, and to investigate the facts and make reparations.

The Human Dignity Trust’s Role

The Human Dignity Trust acts as counsel to Mr Henry with support from its Legal Panel member Freshfields Bruckhaus Deringer. Edward Fitzgerald QC and Douglas Mendes SC are counsel.

Related Links

Jamaica

Country profile of Jamaica. LGBT people are criminalised by the Offences Against the Person Act 1864.

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