Long Road to Justice for LGBTQI Jamaicans
Maurice Tomlinson, Senior Policy Analyst, Canadian HIV/AIDS Legal Network
As a lawyer defending the human rights of LGBTQI people in Jamaica, I am accustomed to receiving death threats. But when I received a particularly vulgar and graphic email threatening to immediately end my life, I was so shaken that I finally went to the police. What happened next shocked me.
The police officer who listened to my story told me that he hates gays, and we make him sick. When I complained to his senior officer (ironically, a Briton who had been sent to Jamaica to professionalize the police force), the latter responded, “Those attitudes are unfortunate, but they won’t change until the laws changes”!
Since then I have known of many instances where police have used the British colonially-imposed anti-sodomy law to persecute or ignore savage attacks against LGBTQI Jamaicans. For example, a gay youth I accompanied to the police station to report an incident of a man hurling rocks and vicious anti-gay expletives at him near his home was told there had been no crime, merely a “stone throwing.” When several transgender youth who were mobbed and assaulted tried to seek police assistance, they were advised they would have to provide the names and addresses of their attackers. On multiple occasions I have had to accompany clients who were caught by police in “compromising positions” and ordered to pay a bribe or have the details of their arrests leaked to the media. Such revelations would be career and life-threatening/ending, so the bribe was invariably paid. In a country where it is illegal to be gay, homophobic attacks are largely not investigated.
Jamaica’s anti-sodomy law criminalizes all forms of male same-gender intimacy — even holding hands in the privacy of a bedroom — with a maximum penalty of 10 years at hard labour. Upon release, the person would have to register as a sex-offender, always carry a pass or face a J$1million fine plus 12 months imprisonment of hard labour for each “offence.” These archaic penal provisions contribute to violent abuse, torture and even murder of LGBTQI people globally. Furthermore, criminalization has been directly linked to the spread of HIV by driving gay men underground, away from effective HIV prevention, treatment, care and support interventions.
In 2015, I decided to file a constitutional challenge to the anti-sodomy law after my previous client withdrew his claim in 2013 because of death threats to him and his family. At a preliminary hearing, the court allowed 10 fundamentalist religious groups to join in supporting the government’s defence of the law but denied the Public Defender’s request to appear to support me. According to the court, the Public Defender’s submissions would be irrelevant. Fortunately, I am being supported by the Canadian HIV/AIDS Legal Network, whose expertise in Canadian jurisprudence will be incredibly important as Jamaica’s Charter of Fundamental Rights and Freedoms was modeled on the Canadian Charter of Rights and Freedoms.
Recently, Caleb Orozco succeeded in getting the Supreme Court of Belize to strike down a similar anti-sodomy law. The decision sent shock waves across the Caribbean, where nine states still have such laws. I am inspired by Caleb’s success and buoyed by the outpouring of support from groups like the Impact Fund. With such support, I have no doubt that we will see victory.
CASE UPDATE 03.29.21
Jamaica’s Attorney General, after not filing any defense or affidavit in response to the claim for the nearly six years since the case was initiated, filed a motion to split the case into two separate cases, which would delay the case further. In March 2021, attorneys for Maurice Tomlinson opposed this motion in a two-day hearing. The Attorney General argued that, before the court could rule on the substantive aspects of the case, it must determine whether the court even has the right to consider this case. The Attorney General cited the savings clause in the Jamaican Constitution, which prevents the court from ruling on certain aspects of the law that were in existence prior to the adoption of the Constitution. Nine separate religious groups are also involved in the case as full parties, which means that Tomlinson, supported by the HIV Legal Network, must respond to motions, expert witnesses, and cross-examinations pursued by 10 different parties. However, the Attorney General and the religious groups are facing increasing pressure from outside the country, including two separate reports from the Inter-American Commission on Human Rights condemning the law and urging the court to overturn it. Since this case was filed, nearby Caribbean nations, such as Belize and Trinidad and Tobago, have overturned similar laws, granting freedom and security to thousands of people.