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Monday, October 10, 2011

New Position Statement from Jamaica Forum for Lesbians, All-sexuals, and Gays

Below is a copy of the J-FLAG's position statement taken from their website. You can view the original by visiting

J-FLAG recognizes that minority groups and other vulnerable communities are the primary victims of acts of discrimination. Discriminatory actions are motivated by ignorance, intolerance and fear, which is used to provide justification for extortion, harassment and acts of verbal, psychological and physical abuse. Other forms of discrimination typically experienced include, but are not limited to, job dismal and denial of access to services in healthcare and housing.

Discrimination on any ground is unjust, inhumane and is a contravention of the inherent rights and dignity of a person. J-FLAG denounces any act of discrimination meted out to an individual known or perceived to be homosexual or bisexual. The Charter of Fundamental Rights and Freedoms and the Universal Declaration of Human Rights affirm our position, which explicitly describe discrimination as a violation of human rights.

According to Section 76 of the Offences Against the Person Act of 1861: “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 labor for a term not exceeding ten years.”
Members of the lesbian, gay, bisexual and transgender (LGBT) community are routinely harassed, extorted, beaten and otherwise terrorized on the presumption that homosexuality is illegal or because buggery is illegal all homosexuals are guilty of its practice. It is J-FLAG’s position that the buggery and gross indecency laws are one of the primary instruments of institutional discrimination that provide justification for human rights violations against LGBT persons, especially gay and bisexual men.

One of J-FLAG’s main objectives is to advocate and lobby for the repeal of the laws that criminalize same-sex intimacy or behaviours on the following grounds:

1.     The definition of sexual intercourse, as articulated in the Sexual Offences Act of 2009, should include other forms of sexual intimacy, including anal sex and other non-penetrative sexual contact.
2.     Consensual anal sex between adults (or persons at the age of consent) does not harm the society
3.     Although all anal sex is prohibited, the law is used disproportionately to stigmatize homosexual and bisexual men. In addition, many persons misunderstand this law to mean that homosexuality is illegal.
4.     The fact that the majority of people find anal sex morally repulsive is not a sound basis upon which to make laws. J-FLAG contends that the buggery law is exceptional, arbitrary, and prejudicial in its criminalizing anal sex.
5.     The legal interpretation of buggery is overly simplistic and reductionist in its apparent separation of the “act” from the human orientation(s) that inspire(s) it. Sexuality is a complex of conscious and subconscious drives, in addition to psychological and physiological functions that are deeply rooted in one’s identity and humanity. In the case of male homosexuality, anal sex is one of the means of expression of these drives and functions. It is our opinion that the law against anal sex effectively denies adult gay and bisexual men the freedom to express themselves sexually, and in so doing, denies them an important aspect of their personhood.
6.     Owing to the fact that sex acts and sexuality are conflated in the popular imagination, the buggery law provides government sanction for discrimination and violence against lesbian and gay persons.
7.     The maintenance of buggery laws is a violation of international human rights laws in that it violates the right to privacy of Article 2 and Article 17 of the International Covenant of Civil and Political Rights (ICCPR). This was confirmed in the case of Toonen v. Australia, 1994, where the Human Rights Committee of the United Nations (under the optional protocol of the ICCPR), decided that offences prohibiting male homosexual sex (similar to our buggery and gross indecency laws) in the Australian province of Tasmania constituted violations of international human rights law. Of note, the panel of the human rights committee of the ICCPR that passed this law included a Jamaican, and the decision was unanimous. Jamaica, as a signatory to the treaty, has an obligation to honour the decision in Toonen v. Australia, and ought, therefore, to change the local buggery and gross indecency laws to be in accordance with its treaty obligations.

J-FLAG abhors the idea of comparing bestiality to buggery. Such a position equates a human consensual activity with an activity with an animal that is often influenced by a psychological disorder in an individual. Furthermore, in some jurisdictions, including Barbados and Trinidad and Tobago, even where buggery and other acts of intimacy between same-sex is illegal, bestiality and buggery are treated as separate offences.

A review of the definitions for the term buggery, cited in Section 76 of the “Offences Against the Person Act,” indicates a lack of consensus as to its meaning. It is most often equated with sodomy, which is also variously defined.

Indeed, enforcement of the law has become biased against homosexual men that the term has come to mean male-to-male anal intercourse in both public and legal usage. Therefore, J-FLAG advocates the complete elimination of Sections 76, 77 and 79 of the Offences Against the Person Act because they violate the Constitutional guarantee of equal protection before the law and the right to privacy. In its place, we would propose expanding the definition of rape in the “Sexual Offences Act” to prohibit any sexual activity between an adult and any non-consenting partner, including animals and persons under the legal age of consent.

Hate Crimes and Violence

J-FLAG condemns all acts motivated by animus and hate, especially acts of physical violence inflicted on a person. Perpetrators of crimes against lesbian, gay, bisexual and transgender (LGBT) persons falsely claim a legal, moral and/or religious imperative for their actions.

These justifications, although popular in the court of public opinion, should have no standing in the courts of Jamaica. The only legitimate reason for a citizen to inflict physical harm upon another is in self-defence or defence of others or property, and even then, violence is allowable only to the extent required to overcome the threat. There is no justification for anyone to inflict violence upon an individual, and in particular LGBT persons on the ground of stereotypes such as a particular type of dress, language, or mannerism.

Hate crimes can be defined as any illegal activity that is motivated by a personal dislike for a target group of people. Hate crimes may be directed toward the entire group, individuals who are members of the group, or places and objects associated with the group. Hate crimes may range from simple vandalism or theft to physical assault or homicide. They are typically, though not always, directed at minority groups.

Throughout Jamaica’s history, many groups have been victims of hate crimes because of their religion, ethnic, economic, political, or sexual orientation. Today, sexual and gender minorities such as homosexuals, bisexuals and transgender persons as well as heterosexuals who are (perceived to be LGBT), or who support the causes of sexual and gender minorities, are increasingly subject to hate crimes.

All crimes have negative consequences for the victim, significant others, the community and society. Furthermore, a special case can be made for hate crimes because they seriously impact on both the individual victim and the larger groups to which s/he belongs’

Capital Punishment

J-FLAG advocates the elimination of the death penalty. New research is showing that even lethal injection, which was thought to be the least painful way to execute an individual results in a slow creeping paralysis which results in the person being aware of their impending death long before it occurs.  The individual is in effect trapped and immobilized in their dying body and their brain experiences an agonizing period.  Hanging, which is practiced in Jamaica, has the potential to result in slow gruesome strangulation. The death penalty therefore constitutes cruel and unusual punishment, which is prohibited by the International Convention on Civil and Political Rights(ICCPR).

Significantly, Jamaica remains a signatory to this important treaty. We further believe that since the legal system is fallible in its deliberations, the potential harm created by the execution of an innocent person far outweighs any crime prevention benefits to be gained. We call for Jamaica to honor its obligations under international law and join other countries that have rejected this antiquated and barbaric form of punishment, which dehumanizes us all.

Rape & Grievous Sexual Assault

Currently, the legal definition and popular conception of rape provides only for the unwanted penetration of a vagina by a penis. The definition of sexual intercourse biases the interpretation of rape (Section 3(1)) of the Sexual Offences Act does not include anal or oral penetration or penetration by objects other than the penis. J-FLAG acknowledges that this is captured in Section 4. However, J-FLAG believes that the terms rape and sexual intercourse must to be broadened and should not be gender biased, use gender-specific language for the victim or the perpetrator or ignore the variations of how men and women have sex.

In an effort to acknowledge the diverse sexual experiences of people, and the various ways that they can be victims of rape or sexual assault, we support revisions to the current definition of rape to include any type of unwanted insertion of an erectile object in not just the vagina, but the anus or mouth.

Additionally, J-FLAG recognizes that various degrees of unwanted sexual contact exist and that the legal punishment for each of these must be appropriate.

Child Sexual Abuse

J-FLAG unequivocally condemns all forms of sexual abuse, including child sexual abuse, regardless of the sexual orientation of the perpetrator. We recognize the rights of children, as articulated in the Child Care and Protection Act 2004 and Convention on the Rights of the Child which includes the right to be free from sexual interference by adults. J-FLAG fully endorses ALL efforts of law enforcers to apprehend and bring perpetrators of child sexual abuse to justice.

We recognise and accept paedophilia as an adult psychosexual disorder that predisposes individuals towards sexual activity with children, which amounts to abuse of power by the adult individual. This exertion of power over the powerless, the use of disproportionate strength to pacify the weak, and the employment of guile to entrap children, should not be compared, associated, or equated with any form of adult consensual sexuality.

The common misperception that child abuse is a central feature of homosexuality, or that homosexuals inevitably, or at least very often, direct their sexual interest towards children, is cause for great concern to us. Homosexuality is an emotional and/or sexual attraction towards members of the same sex and paedophile behavior is in no way characteristic of homosexuality. As much as paedophilia does not characterise heterosexuality, homosexuality should not be treated as a corollary to paedophilia, or vice versa.
Despite the fact that the majority of child sexual abuse cases across the Caribbean involve men who abuse female children, the explanation or blame is never attributed to “heterosexuals” or “heterosexuality” itself. In these cases, the clear distinction between heterosexuality and pedophilia is always maintained, but this very same logic is seldom applied to homosexuality.
The faulty association of homosexuality with child sexual abuse encourages animus towards homosexuals and homosexuality, and is a severe obstacle in the way of our advocacy for the rights of lesbian, gay and bisexual and transgender persons.

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