Maurice Tomlinson, a Jamaican gay rights activist and attorney, has filed a claim in the Supreme Court of Judicature, challenging the constitutionality of Jamaica’s laws criminalising consensual sex between men.
The legal challenge — which will be announced at a press conference tomorrow in Kingston, Jamaica according to a news release issued by the Canadian HIV/AIDS Legal Network — is being supported by the Canadian HIV/AIDS Legal Network and AIDS-Free World.
The release said in its arguments, the legal challenge outlines the ways in which the law violates the constitutional rights of Jamaicans.
The current law, Offences Against the Person Act of 1864, criminalises consensual sexual conduct between men. This includes not only a prohibition on “gross indecency” between men, but also a provision that outlaws the “abominable crime of buggery”, ie anal sex, including between any people of any sex,the release explained.
As a result of recent legislative developments, Jamaican law now also mandates registration, monitoring and potential additional penalties as a “sex offender” of any person convicted of such an offence, it continued.
“The law is a gross violation of my human rights and those of all LGBTI people in my country,” says Tomlinson, who is represented by his legal counsel, Anika Gray. “It directly infringes numerous rights guaranteed by Jamaica’s Charter of Fundamental Rights and Freedoms, and also fuels horrific violence.”
A senior policy analyst at the Legal Network, Tomlinson highlights the deadly consequences of such laws in terms of delivering an effective response to the HIV epidemic.
“The criminalisation and marginalisation of consensual sex drives gay men and other men who have sex with men underground, away from desperately needed HIV prevention, treatment and testing services,” he said.
According to the statement, the Caribbean has the second-highest HIV prevalence in the world, after sub-Saharan Africa. UNAIDS, regional organisations and national agencies have reportedly identified homophobia as a factor contributing to the statistics, and have urged the removal of national laws that criminalise gay men and contribute to the stigma, discrimination and violence faced by LGBTI people.
“We hope that this landmark case will have positive implications across the region,” said Veronica Cenac, a St Lucia-based lawyer, international legal advisor, and board member of the Caribbean Vulnerable Communities Coalition. “Jamaica is not the only Caribbean country where the human rights of LGBTI people are being violated, or where violence and homophobia are contributing to escalating rates of HIV. For these reasons, Mr Tomlinson’s case has the support of many human rights advocates and is an opportunity for the courts to take action in advancing both universal human rights and public health.”
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