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Jamaica Country Report for Use in Refugee Claims Based on Persecution Relating to Sexual Orientation and Gender Identity

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Jamaica Country Report for Use in Refugee Claims Based on Persecution Relating to Sexual Orientation and Gender Identity Jamaica Country Report for use in refugee claims based on persecution relating to sexual orientation and gender identity Produced: June 10, 2009 Updated: April 23, 2012 Sexual Orientation and Gender Identity research – [email protected] International Human Rights Program University of Toronto This document was prepared by law students and highlights information about publicly-accessible country conditions available at the time it was prepared. It is not exhaustive, nor is it updated on a regular basis. The information provided here is not a substitute for Tablelegal advice of Contents or legal assistance, and the International Human Rights program at the University of Toronto, Faculty of Law cannot provide such advice or assistance. 1 Introduction ……………………………………………………………………………...1 Legislation ……………………………………………………………………………….2 Case Law ………………………………………………………………………………….4 Government Reports …………………………………………………………………….12 Reports from International Agencies and Non-Governmental Organizations …………..16 Media Reports Documenting the Persecution of Gays in Jamaica ……………………..27 I. Introduction This Country Conditions report on human rights violations of LGBT Jamaicans surveys reports by the Canadian, U.S. and U. K. governments, reports by Non-Governmental Organizations and media reports documenting persecution of LGBT persons in Jamaica. These reports reveal that: Overt and violent homophobia pervades Jamaican culture; Extreme community violence against persons identified as or presumed to be LGBT is commonplace; Anti-sodomy laws and laws against acts of gross indecency are used to harass and extort LGBT individuals; Police are ineffective protectors of the human rights of LGBT individuals; Police participate in the rights abuses of LGBT individuals; LGBT persons are unable to enjoy their homes safely, lack freedom of association and cannot move in public spaces without harassment or assault; and Jamaican homophobia has an adverse affect on an LGBT person’s ability to access health care and to protect themselves from HIV/AIDS. 2 II. Legislation To access the full text of the Jamaica constitution and Jamaican legislation, see: http://moj.gov.jm/. 1. Offences Against the Person Act, online: <http://www.moj.gov.jm/sites/default/files/laws/Offences%20Against%20the%2 0Person%20Act.pdf>. Article 76 criminalizes homosexual sex between men If convicted under Article 76, an individual faces up to 7 years imprisonment Article 78 criminalizes acts of gross indecency between men; gross indecency is an extremely broad term that can include any kind of physical intimacy Article 78 also criminalizes those who are a party to gross indecency as well as those who procure or attempt to procure gross indecency If convicted under Article 78, an individual faces up to 2 years imprisonment Unnatural Offences Article 76: 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. Article 77: Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour. Proof Of Carnal Knowledge Article 78: Whenever upon the trial of any offence punishable under this Act, it may be necessary to prove canal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only. Outrages on Decency Article 79: 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 3 at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour. 2. The Consitution of Jamaica, online: <http://moj.gov.jm/sites/default/files/laws/Constitution%20of%20Jamaica_0.pdf >. Section 13 guarantees freedom from discrimination; sexual orientation is not, however, a protected class Section 19 guarantees an individual’s privacy within their home and family Fundamental Rights and Freedoms Section 13: Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely- a. life, liberty, security of the person, the enjoyment of property and the protection of the law; b. freedom of conscience, of expression and of peaceful assembly and association; and c. respect for his private and family life, the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest. Section 19(1): Except with his own consent, no person shall be subject to the search of his person or his property or the entry by others on his premises. 4 III. Case Law Canada 1. Immigration and Refugee Board A. Canada (Public Safety and Emergency Preparedness) v. Livermore, 2007, TA2-25093 Conditional stay of removal granted Persons living as open homosexuals or as homosexual activists are acutely at risk in Jamaica. A person who is open about their sexuality in Canada may be at risk should they choose to return to Jamaica Claimant is recovered drug user with criminal past. She was born in Jamaica in 1964 but became a Permanent Resident in Canada in 1977. In prison, the claimant began a series of lesbian relationships and, outside of jail, had two short-term experiences. She asserted that she was attracted to women now and less attracted to men. However, the claimant stated that “relationships were not important to her now” because “since leaving jail . she was too busy trying to put her life together.” She asserted that, were she deported, “her main preoccupation would be looking after herself . and that if nobody knew about her sexuality she would be safe.” The Board was satisfied that the claimant was lesbian on the basis of her own testimony than that of her daughter, who had been aware of the claimant’s sexual preferences for “at least two years.” On the matter of treatment of LGBT persons in Jamaica, it considered “documents tendered by the appellant concerning the treatment of gays and lesbians in Jamaica” and “an opinion obtained by the appellant’s counsel from Amnesty International which painted an overall dangerous and sometimes deadly prospect for persons identified with being gays and lesbians.” The Board made the following remarks on the claimant’s sexuality: [31] The appellant is, however, not living as an open lesbian and her relationships with women, which have only recently manifested, were infrequent and currently non-existent. She still has some attraction for men although given her history with them the panel can understand why she would prefer the company of women. [32] The appellant’s lack of an open lesbian lifestyle, coupled with her admitted ability to live without such relationships, does not suggest to the panel that she would immediately be perceived as a lesbian, although the documents suggest that those living openly or as activists for lesbian rights or lifestyle would be acutely at risk. The panel concludes that the appellant would be at some risk if she were to live openly as a lesbian in Jamaica, and she might face difficulty should the fact of her lifestyle follow her to Jamaica. 5 Ultimately, the panel granted a conditional stay of removal on the basis of a combination of factors including questionable family support in Jamaica, the claimant’s potential for rehabilitation, the presence of her children in Canada, the hardship she would face in re- establishing herself in Jamaica, and the fact that “she would be at some risk if word of her sexuality became known.” B. X (Re), 1996, T95-00305 Application granted False arrest, arbitrary detention and harassment by police, as well as attacks, denial of employment opportunities and eviction by private actors were sufficient to show persecution within the definition of Convention refugee The claimant’s fear of persecution was well-founded because of the high level of public homophobia and lack of state protection for homosexuals in Jamaica The claimant had been “falsely arrested, arbitrarily detained, maliciously harassed by police officers, and warned by the authorities not to associate with gay men.” Because of his sexual orientation, he had also been “attacked by students while attending University, denied employment opportunities, chased by street gangs, and evicted from rental accommodation.” The Board found that these ongoing acts by state and non-state actors amounted to persecution within the definition of a Convention refugee. Documentary evidence establish that the “high level of public intolerance of homosexuality leaves homosexuals particularly vulnerable to persecution.” Popular songs celebrating the “hunt[ing] down and kill[ing of] homosexuals” speak to this high level as did as the experiences of other homosexuals. The government’s refusal to repeal sodomy laws, along with evidence of police raids on private residences of gay men, news reports of buggery charges, and a statement by the First Secretary of the Jamaican High Commission in Ottawa that “considering the high crime rate in Kingston, police protection could not be provided to a person who claims persecution on the basis of his sexual orientation” were also considered.
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