Report No. 400 (2021) IACHR. Petition No. 13.637 (Jamaica)

CourtInter-American Comission of Human Rights
Case TypeMerits
Respondent StateJamaica












REPORT No. 400/20

CASE 13.637

REPORT ON THE MERITS (PUBLICATION)


GARETH HENRY AND SIMONE CARLINE EDWARDS

JAMAICA










OEA/Ser.L/V/II

D..418

December 31, 2020

Original: English

























Approved electronically by the Commission on December 31, 2020






Cite as: IACHR, Report No. 400/20. C. 13.637. Merits (P.). G.H. and S.C.E.. Jamaica. December 31, 2020.





www.cidh.org




I. INTRODUCTION 2

II. POSITION OF THE PARTIES 2

A. Petitioners 2

B. S. 4

III. FINDINGS OF FACT 5

A. Jamaica’s “buggery” law 5

B. LGBTI persons in Jamaica 6

C. The situation of G.H. and S.E. 7

D. Challenges to the Offences against the Person Act 8

IV. ANALYSIS OF LAW 9

A. The principle of equality and non-discrimination, the right to privacy, the right to humane treatment and the freedom of movement and residence 9

1. General considerations 9

2. A. of this case 15

B. The principle of legality 17

C. Right to judicial protection 18

V. ACTIONS SUBSEQUENT TO REPORT NO. 159/19 19

VI. REPORT No. 249/20 AND INFORMATION ABOUT COMPLIANCE 23

VII. FINAL CONCLUSIONS AND RECOMMENDATIONS 23

VIII. PUBLICATION 24










  1. INTRODUCTION


  1. On December 22, 20111, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a petition filed by G.H., The Jamaica Forum of Lesbians, A.-Sexuals and G.s (J-Flag)2, the Human Dignity Trust and Freshfields Bruckhaus Deringer LLP (the “petitioners”) alleging the international responsibility of Jamaica3 (“the S.” or “Jamaica”) for the violation of several rights of G.H. and Simone Carline E. as a consequence of laws that criminalize same sex relationships between consenting adults and create an adverse context for LGBTI persons.


  1. The Commission approved its Admissibility Report No. 80/18 on J. 2, 2018.4 On J. 17, 2018, the IACHR notified the report to the parties and placed itself at their disposition to reach a friendly settlement, but no agreement was reached. The parties were allocated the time periods provided for in the IACHR’s Rules of Procedure to present additional observations on the merits of the case. A. of the information received by the IACHR was duly transmitted to the parties.


  1. POSITION OF THE PARTIES


  1. Petitioners


  1. The petitioners allege that Jamaica is in violation of its obligations under the American Convention by continuing to criminalize private consensual sexual activity between adult males, and by protecting from domestic legal challenges these colonial-era “buggery” and “gross indecency” laws. Petitioners submit that this perpetuates Jamaica’s culture of violent homophobia and encourages the S. and the general population to persecute not only male homosexuals, but also the broader lesbian, gay, bisexual, trans, and intersex (LGBTI) community.


  1. The petitioners argue that specific sections of the Offenses Against the Person Act of 1864 (also referred to as “OAPA” and “buggery laws”) criminalize buggery, defined as anal sex, and “acts of gross indecency” between men, in public or private, with a maximum penalty of 10 years’ imprisonment. T. argue that buggery laws are used to prosecute and legitimize discrimination and violence toward LGBTI persons based on sexual orientation and/or gender identity.


  1. The petitioners claim that M.H., a gay man, was often harassed and beaten from the time he was a child due to his sexual orientation. T. allege that Mr. H. was forced to leave his hometown and family due to the homophobic attacks, and was compelled to move from place to place. From December 2003 to M. 2007, petitioners claim that Mr. H. was often harassed by police officers. In particular, they claim that M.H. was brutally assaulted two times by police officers because of his sexual orientation.


  1. The petitioners assert that the first attack occurred on Christmas Day of 2003, when Mr. H. was beaten by an officer in front of a crowd of 70 people who encouraged the attack. T. claim that Mr. H. attempted to report the incident two times without success because police either refused to file the report or required him to submit information about the assailant that was inaccessible to him.


  1. The petitioners express that the second assault occurred on February 14, 2007, just after police agents identified him as a gay man. T. allege that a mob of 200 people was chasing other gay men and chanting that gay people must be killed, and that the officers, rather than protect Mr. H., insulted and beat him. T. claim that Mr. H. was able to report the crime to the police after two attempts, but he was asked to provide a witness in order to proceed with the investigation. T. allege that the same day of the attack and the day after, police officers showed up at his home and threatened him. T. assert that Mr. H. suffered severe injuries as a consequence of this second assault, and that on this occasion he sought medical care for the first time following an attack. T. allege that he had previously avoided doing so because health care personnel also discriminate against LGBTI people.


  1. The petitioners affirm that, in his role as an advocate for LGBTI rights and HIV/AIDS prevention, M.H. and his colleagues were not allowed to provide information and express their views on those issues, and were verbally and physically attacked multiple times in public spaces by police officers and third parties when they were doing advocacy work in the community. Petitioners allege that Mr. H. reported many of these attacks, but police never investigated them. Petitioners allege that subsequent homophobic aggression led Mr. H. to flee his country, and that he was granted asylum in Canada in J. 2008 and obtained the citizenship in 2015.


  1. On the other hand, the petitioners allege that S.C.E. is a lesbian woman who suffered a homophobic attack on A. 29, 2008, that almost killed her. Petitioners claim that Ms. E. and her brothers, one of whom is also gay, were shot multiple times in her home in Spanish Town by two men who belong to a homophobic gang. T. claim that Ms. E. lost one of her kidneys and part of her liver as a result. Petitioners allege that Ms. E. recognized one of the assailants, and that her brother identified one of the gunmen in an identification parade. T. add that Ms. E.’s brother asked for witness protection but it was refused. T. argue that Ms. E. was never informed of any progress on the police investigation and that she and her brother were never asked to go to court. T. report that, despite the identifications made by the E., the only assailant who had been captured was later released, and that the second gunman was never arrested. T. claim that Ms. E. and her family were not able to return to their home after the shooting because they were afraid of reprisals, and that she and her daughter were compelled to continuously move from place to place. T. indicate that she fled Jamaica in September 2009 after receiving two more homophobic threats, and that she was granted asylum in the Netherlands.


  1. The petitioners claim that M.H.’s and Ms. E.’ families were also targeted for discrimination and violence on the basis of M.H.’s and Ms. E.’ sexual orientation. T. allege that Mr. H.’s mother, sister and other family members also sought asylum in Canada due to discrimination based on their relationship with him. The petitioners likewise allege that Ms. E. and her daughter were forced to separate for two years, until she was able to bring the child to the Netherlands. T. assert that one of Ms. E.’s brothers also sought asylum in the Netherlands, as he was targeted and wounded during the shooting of A. 29, 2008 because he is gay. T. add that another of Ms. E.’s brothers had to leave his job because he was harassed based on his siblings’ sexual orientation.


  1. As regards to legal arguments, the petitioners submit that the buggery laws violate the principle of non-discrimination and equality before the law, because they perpetuate an unjust and illegitimate difference in treatment on the basis of sexual orientation and endanger the bodily integrity of homosexual men in Jamaica. T. claim that there is interconnectivity between the discriminatory effect of the buggery laws and homophobia in Jamaica.


  1. T. argue that the buggery laws violate the right to life and to humane treatment because it constitutes an invitation and sanction to both public bodies and private individuals to act violently against homosexuals...

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