Jamaica: Case Decided by the Inter-American Commission on Human Rights

Summary

This case, filed in December 2011, challenged the laws in Jamaica that render private consensual sexual intimacy between males a criminal offence. These laws directly enabled the discrimination, threats, violence and lack of State protection that the Petitioners, Gareth Henry and Simone Edwards faced, forcing them to flee Jamaica and claim refugee protection abroad. They sought a declaration that these laws violate Jamaica’s legal obligations under the American Convention on Human Rights. The Inter-American Commission on Human Rights, in a confidential preliminary decision issued on 28 September 2019 that was confirmed in a public decision issued on 31 December 2020, found that by maintaining the anti-LGBT criminal laws Jamaica is in direct violation of its legal obligations under the American Convention on Human Rights. The Commission urges Jamaica to repeal the offending provisions and take other steps to protect LGBT people such as education and training, the enactment of anti-discrimination legislation and the collection of data on the prevalence and nature of discrimination and violence faced by the LGBT community in the country. Jamaica has yet to implement the Commission’s recommendations and remains in breach of international law.

Case Details

Laws criminalising male homosexual conduct were introduced to Jamaica by the British colonial authority in the 19^th 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, was 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 was 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 argued 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 was against the State of Jamaica.

Applicable Law

The Petition alleged 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:

Relief Sought 

The Petition sought 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 sought 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 objected to the admissibility of the Petition and defended 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.’

On 28 September 2019, the Commission issued a confidential decision on the merits of the petition (IACHR, Report No. 159/19, Case 13.637. Merits. Gareth Henry, Simone Carline Edwards and families. Jamaica. September 28, 2019), finding Jamaica in violation of the ACHR and urging the state to repeal the offending laws and take other measures to protect LGBT Jamaicans. Before making the decision public, the Commission afforded the parties an opportunity to make submissions on Jamaica’s implementation of the recommendations.

The petitioners made submissions to the Commission on the Jamaican government’s failure to implement the Commission’s recommendations, while the Jamaican government did not respond to the Commission’s request to comment.  The Report was duly finalised and authorised for publication by the Commission on 31 December 2020, and this was communicated to the petitioners on 17 February 2021.

Violations

The Commission explicitly identified the following violations by the State of Jamaica:

• The right to privacy (Article 11, ACHR) & the right to equal protection (Article 24, ACHR)

“… the Commission concludes that the State of Jamaica is responsible for the violation of the principle of equality and non-discrimination and the right to privacy, as enshrined in Articles 11 and 24 of the American Convention, in connection with the obligations established in Articles 1.1 and 2 of the same instrument, to the detriment of Gareth Henry and Simone Carline Edwards.” [para. 85]

• The right to humane treatment (Article 5.1, ACHR) & the right to freedom of movement (Article 22.1, ACHR)

“The IACHR believes that by maintaining Offences Against the Person Act in its legislation, the State has contributed to the perpetration of said violence in the terms indicated above, for which reason it considers that it is responsible for the violations of the right to humane treatment, the freedom of movement and residence as enshrined in Articles 5.1 and 22.1 of the American Convention, in connection with the established obligations in Articles 1.1. and 2 of the same instrument, to the detriment of Gareth Henry and Simone Carline Edwards.” [para. 88]

• The principle of legality (Article 9, ACHR)

“The Commission considers that the criminalization of conducts that are part of rights recognized by international human rights law constitutes, per se, a violation of the principle of legality, taking into account the Inter-American standards referred to in the preceding paragraphs.

By virtue of the considerations indicated above, the Commission concludes that the State of Jamaica is responsible for the violation of the principle of legality as enshrined in Article 9 of the American Convention, in connection with the obligations established in Articles 1.1 and 2 of the same instrument, to the detriment of Gareth Henry and Simone Carline Edwards.” [paras. 92-93]

• The right to judicial protection (Article 25.1, ACHR)

“In the instant case, the Commission notes that the Constitution of Jamaica establishes that sexual offences shall not be held to be inconsistent with or in contravention of the provisions of the Constitution. The State argued that it is possible to challenge the relevant sections of the Offences Against the Person Act, but did not provide evidence of an available and effective remedy.

The Commission recalls that a challenge to sections 76, 77 and 79 of the Offences Against the Person Act was filed in 2013, but it was later withdrawn, and another challenge was filed in 2015, but it has yet to be resolved.

The IACHR considers that the mere presentation of an action does not prove that availability and effectiveness of a remedy… In view of the foregoing, the Commission considers that Gareth Henry and Simone Carline Edwards did not have an effective remedy for the protection against acts that violate their human rights.

By virtue of the considerations indicated above, the Commission concludes that the State of Jamaica is responsible for the violation of the right to judicial protection as enshrined in Article 25.1 of the American Convention, in connection with the obligations established in Articles 1.1. and 2 of the same instrument, to the detriment of Gareth Henry and Simone Carline Edwards.” [paras. 96-99]

Conclusions and Recommendations

The Commission made the following recommendations to Jamaica in light of the above violations:

1. Provide full reparation – economic compensation and measures of satisfaction – for the human rights violations identified above.

2. Adopt the following measures of non-repetition to prevent similar incidents in the future:

• • Repeal sections 76, 77 and 79 of the OAPA;
  • Adopt anti-discrimination legal framework to prohibit discrimination based on sexual orientation, gender identity or expression – real or perceived – and body diversity;
  • Collect and analyse data on the prevalence and nature of violence and discrimination based on sexual orientation, gender identity or expression – real or perceived – and body diversity;
  • Apply due diligence in the prevention, investigation, punishment and reparation of violence against LGBTI persons, whether in the family, community or public sphere and ensure that investigations are not permeated by prejudice;
  • Conduct training for Jamaican public officials, particularly judges, prosecutors, public defenders, security forces and the education, employment and health sectors on sexual orientation, gender identity and gender expression, body diversity, and the challenges faced by LGBTI people;
  • Ensure Jamaica’s educational programs are designed with a gender perspective – to deconstruct stereotypes and prejudices – and include comprehensive sexuality education in the school curriculum.

The Human Dignity Trust’s Role

The Human Dignity Trust represented Mr Henry and Ms Edwards in this case, with pro bono support from our Legal Panel member Freshfields Bruckhaus Deringer. Douglas Mendes SC and Edward Fitzgerald QC acted as counsel.