Claiming Privacy: First Domestic Challenge to Jamaica's Anti-Sodomy Law
February 11, 2013: - In 2011, Jamaica's Parliament unanimously approved a new Charter of Fundamental
Rights and Freedoms which, for the first time, explicitly guarantees the right to privacy. However, the Charter also appears to
preserve the 1864 British colonially imposed anti-sodomy law. Under this law, intimacy between two adult men in the privacy
of their bedrooms can land them in prison for up to 10 years at hard labour. This creates an obvious contradiction: it
is arguable that under the new Constitution it is now impossible to enforce the anti-sodomy law without breaching
the new right to privacy. Although the Jamaican government has resisted calls to repeal the law, the leaders of
Jamaica's major political parties have repeatedly said that they have no intention of prying into the bedrooms
of consenting adults. Confusion about the interpretation of these competing provisions in the Charter is
wreaking havoc on the private lives of Jamaican gay individuals. On behalf of one such person, young
gay rights activist, Javed Jaghai, AIDS-Free World has filed a claim in the country's Supreme Court
seeking a declaration that the anti-sodomy law no longer applies to private acts of intimacy
between consenting adult males. The first hearing of the case will take place on June 25, 2013.
Javed was evicted from his home because of his sexual orientation. The homeowner argued that, as a homosexual, Javed would
break the law by engaging in intimate acts with other men on the premises.
Sadly, Javed's experience is not uncommon; gay Jamaicans endure almost daily intrusions into their privacy. In 2005, two
middle-aged men were convicted under the anti-sodomy law when a passing policeman viewed them through their bedroom window. In even more
extreme cases, armed mobs have invaded the homes of homosexuals in an attempt to evict them; in other cases, homophobic neighbours have
stoned and torched premises because they belonged to homosexuals or their families. Even 11 year old LGBT youth have been turned out
on the street by family members, and the mere suspicion of homosexuality can earn someone an abrupt eviction, or worse.
These violations result in gay Jamaicans often having to pay a premium for housing. Those who cannot afford it end up
homeless. The growing homeless LGBT population is presenting social and economic problems for Jamaica. There is also a grave health
risk. Homeless LGBT sometimes turn to sex work as a means of survival where clients often pay more for unprotected sex.
The fear of an invasion into their privacy also impedes Jamaican men who have sex with men (MSM) from accessing public health
facilities geared towards the treatment and prevention of HIV and AIDS. Moreover, due to the anti-sodomy law, public health campaigns and
facilities geared towards HIV and AIDS prevention and treatment cannot explicitly target homosexuals and MSM, even though both groups
are recognized to be at highest risk for new HIV infections.
As guardians of the Constitution, we fully expect that the court will live up to its duty to interpret the law in a manner
that gives full effect to constitutional values and principles, including the newly enshrined right to privacy of consenting adult
Source: AIDS-Free World
For more information:
Legal Advisor, Marginalized Groups
Anika Gray, Legal Analyst
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