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.

 

Remote Internship, the New Normal

Mehri GhazanjaniBy Mehri Ghazanjani

This summer, I started my remote internship at the HIV Legal Clinic thinking that it would be an awkward or inconvenient. However, soon I realized that in fact there were a number of advantages to a remote internship. For example, I was quite happy I didn’t have to go through the stressful experience of finding accommodation in Toronto. However, I soon realized that the key to a positive and effective remote experience was having clear and frequent communication. One of the first things that stood out to me when I started my internship was how quick and willing people, and in particular my supervisor, were to join a Zoom/Team call and allocate their time to answering my questions. Despite everything being remote, people still actively communicated ideas on how to improve something, or just fun life stuff. And this really eased the process for me.

This year, I realized how easy it is to lose motivation and stay engaged when you are physically disconnected from people and responsibilities in your life. In terms of interning remotely, there are many things that I learned about staying motivated and productive. For one, the fact that I was working on very interesting projects, including working on a submission to the UN Committee against Torture about criminalization of drugs in Canada and its torturous impacts on various marginalized groups kept me engaged, motivated, and passionately involved.

In particular, punitive drug laws and policies in Canada have fueled deadly stigma and epidemics of preventable illness and death, contributing both to significantly higher rates of HIV and hepatitis C (HCV) among people who inject drugs in Canada than among the population as a whole and to an overdose crisis that has resulted in almost 20,000 overdose deaths between January 2016 and September 2020, with Indigenous Peoples particularly affected.

While the toxic drug supply is largely responsible for these dire numbers, the unregulated market is driven by Canada’s long-standing policy of criminalizing drugs and the people who use them. This punitive approach pushes some people to use their drugs in isolation, compromising their ability to take vital safety precautions, deterring people from essential health care and social supports, and subjecting people who use drugs to increased risk of overdose, HIV and HCV infection, and other harms —constituting a form of cruel, inhuman or degrading treatment.

Moreover, the criminalization of personal possession and trafficking has hampered the scale-up and operation of supervised consumption services (SCS), which are settings that provide a safe, hygienic environment where people can use drugs with sterile equipment under the supervision of trained staff or volunteers to prevent the transmission of infections and overdose-related deaths. Not only have SCS been one key measure to address Canada’s ongoing overdose crisis, they can also provide a refuge from various forms of violence that women who use drugs may experience on the street.

In 2017, Canada replaced some of the onerous legislative requirements to operate SCS with simpler, streamlined requirements, resulting in new SCS being implemented across the country. Yet there remains a need to facilitate the scale-up of SCS across the country and to remove restrictions (imposed by the criminalization of trafficking) on assisted injection administered by SCS staff or peers and on splitting and sharing of controlled substances — restrictions which prevent people from accessing SCS and increase their risk of overdose and criminalization.

Notably, the provision of other harm reduction services — including drug checking — are also hampered by the criminalization of personal possession and trafficking. Drug checking services provide people who use drugs with information on the chemical composition of their drug samples to facilitate more informed decision-making.  Given the extreme toxicity of the unregulated drug market and staggering loss of life due to overdose fatalities, impediments to the implementation of harm reduction services like supervised consumption services and drug checking inflict harm and suffering upon people who use drugs, further constituting a form of cruel, inhuman or degrading treatment.

I assisted HIV Legal Clinic in drafting a submission to the UN Committee against Torture and argued that Canada’s drug policies are in violation of Articles 1 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Working on this submission was definitely one of my personal highlights this summer!

More than anything, one thing that I’ve taken away from this experience is how valuable it is to be adaptive. Especially in the times of Covid-19, where we’ve constantly had to adjust ourselves to a “new normal,” I’ve had to come to terms with the idea that it is okay to be uncertain, in doubt, and even confused. When facing uncertainty, I realized, it is important to take a step back every once in a while, before throwing yourself into unfamiliar grounds.

I have to admit that at first I was rather disappointed when I realized I couldn’t experience the in-person version of the internship, something I was very much looking forward to. But everything worked out nicely in the end and I still had a wonderful intern experience. I particular, two things that have made a huge difference for me were support and transparency from my supervisor and helpful feedback on my ideas and work. Complicated times are always full of unique and life-changing opportunities. It’s always important to prepare for the worst and hope for the best!

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