A Case for Decriminalization of Homosexuality in Jamaica

Mehri GhazanjaniBy Mehri Ghazanjani

The highlight of my work at the HIV Legal Network was the opportunity to get involved in an ongoing project aimed at bringing a constitutional to Jamaica’s anti-sodomy laws. Jamaican law, and more particularly the Offences Against the Person Act (OAPA), criminalizes consensual sexual conduct between men (sections 76, 77, and 79). This statute has existed since 1864, when Jamaica was under British colonial rule, and has lasted since then despite Jamaica’s independence from the colonial rule in 1962. More recently, in 2011 and 2012, the Sexual Offences Act and the Sexual Offences (Registration of Sex Offenders) Regulations came into effect, requiring anyone convicted of “buggery” to be registered as a sex offender and to always carry a pass or face 12 months in prison and a J$1 million fine. These laws are collectively referred to as “anti-sodomy law.”

The Sexual Offences Act, therefore, has made Jamaican law criminalizing sex between men even harsher because conviction also means mandatory registration, and potential additional punishment, as a sex offender. Although in practice, there are few documented cases where the police or prosecutors in Jamaica have tried to charge individuals with “buggery,” it is undeniable that the mere existence of the law implies the possibility of prosecution. In addition, on a larger societal scale, it’s important to note the harmful effects of the law including the potential for its use as a pretext for harassment by police and the stigma, discrimination and violence that criminalization perpetuates and encourages.

Indeed, the anti-sodomy law is in violation of several rights guaranteed by Jamaica’s 2011 Charter of Fundamental Rights and Freedoms (e.g. the rights of Jamaicans to liberty and freedom of the person, security of the person (i.e., physical and mental integrity), equality before the law, non-discrimination on the ground of being male or female, etc.). Notably, Jamaica has recognized these human rights both in its own constitution and in international human rights treaties it has ratified. However, although according to the Jamaican Charter any person whose constitutional rights have been, are being or are likely to be violated, may bring a claim for the law to be reviewed, according to a “savings” clause in the Charter, laws relating to sexual offences are protected from constitutional review by the courts if they were in force immediately before the Charter came into effect. But if the law is “changed, adapted or modified in any respect” after the introduction of the Charter, then it is no longer insulated from such constitutional review and must conform to the Charter’s guarantees of fundamental rights and freedoms.

The case that the HIV Network is raising against the anti-sodomy laws argues that after the adoption of the 2011 Charter, the Sexual Offences Act and its regulations changed Jamaica’s criminal law regarding sexual activity between men to make it harsher and, hence, this means the law applicable to gay men’s consensual sexual activity is no longer the law that existed immediately before the Charter. Therefore, it must now conform to the human rights provisions guaranteed by Jamaica’s Constitution.

My work on the case involved two main steps: first, I looked at differences and similarities in sex offender registries (SOR) in various jurisdictions (Canada, the US, and Europe) and provided updates on the legal tests these jurisdictions have applied in their analysis of punition by researching and analyzing pertinent cases laws. More specifically, the implementations of SORs are punitive under three legal tests developed in Canada, the United States, and Europe. Although these tests were developed independently and in different jurisdictions, they all provide a framework from which the effects of SORs may be considered in exploring whether these laws impose criminal sanctions in the guise of administrative measures. These tests look beyond the legislature’s intent in creating the registry and consider what, in reality, its effects are on sex offenders. The approach adopted by the Supreme Court of Canada seems to be the most liberal perspective. In R. v. KRJ, the court suggested that prevention and punishment are not mutually exclusive and that a SOR can be punitive even if there is clear language that suggests it is only preventative [1]. This highlights the courts’ receptiveness to arguments based on the deleterious effects of sex offender registries on their registrants. In the US, in particular, some courts cast doubt on the true value of SORs and discuss the broad and destructive negative effects they can have on individuals’ lives and society as a whole [2].

This brings me to the second step of my work: I conducted secondary research of sociology and psychology journals to explore the real-life effects of sex offender registration on various aspects of offenders’ lives (e.g. employment, housing, mental health, social isolation) to demonstrate the continued punitive nature of these laws on the offenders. For example, studies suggest that among different types of felons, society tends to stigmatize sex offenders the most, so reintegration can be challenging for these individuals [3]. As a result, sex offenders often experience isolation, shame, depression, and apprehension due to the public registration requirement [4]. Further, in order to successfully reintegrate, an offender must conform to societal conventions by securing adequate housing, maintaining rewarding employment, forming positive interpersonal relationships, and avoiding recidivism [5]. Sex offenders are often stigmatized in society as the public nature of their offense leads to these individuals becoming labeled as pedophiles or perverts by their communities even if their offense did not involve minors or sexual assault. These labels and stigmas, as will be discussed below, inhibit their ability to successfully reintegrate [6]. More particularly, in Jamaica, registrants are required to carry on their person at all times a Certificate of Registration of Sex Offender. In addition, because of the availability of the information to a number of parties such as employers, the private nature of registries can often be meaningless once information is released in a community. These elements of SORs make them highly punitive in nature.

Our hope is that the Court will ultimately decide the SORs have so fundamentally changed the anti-sodomy laws that the laws are no longer the ones that were put in place before the adoption of the Charter (and hence saved by the savings clause). The goal of the challenge is to have the court bring the law into conformity with the Charter. I am glad that I will continue my work on this case at the HIV Legal Network as a volunteer and will observe new developments as the case unfolds in the future.

[1] R v KRJ, 2016 SCC 31, at para 22 [KRJ].

[2] See Smith v Doe, 538 US 84, 123 SCt 1140 [2003].

[3] Fox, K.J. (2015). Contextualizing the policy and pragmatics of reintegrating sex offenders. Sexual Abuse: A Journal of Research and Treatment, 1-23; Prescott, J.J. (2016).

[4] Bitna, K., Benekos, P., & Merlo, A. (2016). Sex offender recidivism revisited: Review of recent meta-analyses on the effects of sex offender treatment. Trauma, Violence, and Abuse, 17(1), 105-117.

[5] Hunter, B. A., Lanza, A.S., Lawlor, M., Dyson, W., & Gordon, D.M. (2015). A strengths-based approach to prisoner reentry: The fresh start prisoner reentry program.

[6] Visgaitis, R. L. (2011). Retroactive application of the sex offender registration and notification act: A modern encroachment on judicial power. Columbia Journal of Law & Social Problems, 45(2), 273-302.

 

Equitable Access to a Quasi-Constitutionally Protected Facility

By Nicholas Pineau

My summer spent with the HIV Legal Network has radically deepened my understanding of harm reduction and human rights in Canada. While my first year of law school discussed the subject in various classes (such as in the context of physician-assisted suicide in the Carter case), I have enjoyed getting to learn more about supervised consumption sites (SCS) during my internship. SCS were quasi-constitutionally protected by the Supreme Court of Canada in their 2011 Insite decision. The Court held that such sites save lives, and the Minister of Health arbitrarily denying a Vancouver site the requisite exemption from the Controlled Drugs and Substances Act ran afoul of the right to life, liberty, and security of the person of individuals who access the site. While this decision deepened acceptance of harm reduction practices in Canada, there remains much work to be done to ensure equitable access to SCS.

One issue I have been working on during my internship is the practice of assisted injection, where individuals require assistance to properly inject substances at SCS. This practice is currently not allowed at SCS in Canada, creating a barrier to access for certain marginalized groups. Notably, it is often women (who often inject with intimate partners) and persons with disabilities who struggle to inject on their own. This limits access to a life-saving facility, and one is left to question whether such a restriction would run afoul of Section 7 of the Charter if a new decision à la Insite were to come out today.

One barrier erected by the Canadian government in its restriction on assisted injection is that it leaves the door open to numerous forms of liability for nurses in Canada if they were to assist SCS clients. A recent report I helped draft for the Network focused on some of these considerations—what are the potential criminal, civil, and professional body liabilities that could arise if a nurse were to assist with injection, and something were to go wrong?

This report allowed me to sharpen my legal research, reasoning, and writing skills. Because there is limited jurisprudence on the subject, I had to be creative in my utilization of available Canadian law. As an example, to answer the question of whether a nurse could be found guilty of manslaughter if a client were to die after being assisted with injection, I relied on the 2019 case R v Javanmardi, where an Ontario naturopathic doctor was not held liable for manslaughter for injecting an individual with a naturopathic substance. Justice Abella, writing the majority opinion, held that the act of injecting by a properly qualified professional was not dangerous enough in and of itself to warrant a finding of the requisite mens rea to convict someone of manslaughter. While the Javanmardi case is not a direct parallel to assisted injection at SCS, it offers an analogous reason to believe that the Court may see assisted injection as a life-saving harm reduction practice that increases equitable access to SCS, rather than a criminal act.

Another interesting consideration for the practice of assisted injection is how ‘safe supply’ impacts the potential liability nurses may face. As a result of the ‘dual pandemics’ of COVID-19 and opioid overdoses in Canada, the Canadian government authorized physician-prescribed opioids to limit the potential for overdose from the toxic street supply. The fact that such opioids are prescribed may limit the potential liability nurses may face for assisting with injection. The strength and non-toxicity of the substances are known before injecting, and if the alternative is that individuals inject on the street—where there is a risk of disease transmission from needle sharing or risk of arrest from police surveillance—then it becomes difficult to understand why assisted injection is restricted at SCS. A harm reduction perspective would contend that the possibility of assisted injection limits the potentially deleterious impact of leaving women and people with disabilities to inject on the street, with no one potentially available to intervene in the event of an overdose.

Overall, my summer at the HIV Legal Network has been illuminating, and I have loved seeing the issues we learn about in law school from a more nuanced and deeper perspective. While most of us would celebrate the Supreme Court of Canada’s acceptance of SCS in its 2011 decision, we never learn about what came after, and how such sites are not perfect solutions on their own. Political activism and advocacy remain necessary to ensure equitable access to government-sanctioned harm reduction services, and to fully realize the human rights of those living with or affected by HIV.

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