VIII. LEGAL STANDARDS

When people in Jamaica are driven from their homes and towns, subjected to relentless violence with little recourse to police protection, discriminated against in health care provision, and face public disclosure of confidential and private information because they are living with HIV/AIDS or based on their sexual orientation or gender identity, they are not experiencing "Jamaican culture."They are experiencing human rights violations.

Jamaica has ratified international and regional treaties requiring it to protect human rights to freedom from violence and arbitrary arrest and detention, freedom of association and assembly, the highest attainable standard of health, privacy, and nondiscrimination based on sexual orientation, gender identity, and HIV status.These treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Convention on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of all Forms of Discrimination against Women, and the American Convention on Human Rights (ACHR).

Laws criminalizing homosexual conduct and abuses based on sexual orientation and gender identity have been extensively reviewed by United Nations bodies charged with interpreting these treaties, U.N. special experts on torture, extrajudicial executions, and health, and bodies established by the U.N. charter for the protection and promotion of human rights.Jamaica's sodomy laws and many of the practices described in this report are completely at odds with the conclusions of these bodies, which have roundly condemned such laws and practices as violations of fundamental human rights to privacy and nondiscrimination, and for fueling serious human rights abuses against sexual minorities.

Freedom from violence

The Jamaican Constitution recognizes the right to life as a fundamental right.[226]Jamaica has also ratified international and regional instruments that enshrine this protection, including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights.[227]By inciting third parties to commit acts of serious violence against men who have sex with men and failing properly to investigate crimes of violence against them, the Jamaican government is failing in its obligation to protect the right to life.

The ICCPR and the American Convention require states to prevent torture and other cruel, inhuman or degrading treatment or punishment, including by private actors.[228]These treaties further require state parties to ensure to all persons within their territory the rights recognized therein.[229]

When police beat, mistreat, and abuse people on the basis of their HIV status, sexual orientation, or consensual sexual conduct with members of the same sex, they violate these basic protections.When police instigate or fail to protect against such violence or abuse committed by private actors, they also violate these protections.The ICCPR's prohibition against torture and cruel, inhuman or degrading treatment or punishment applies "not only to acts that cause physical pain but also to acts that cause mental suffering to the victim."[230]

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which Jamaica is a party, requires state parties "without delay" to take all appropriate measures to end gender-based discrimination, including by taking action to modify rigid stereotyping of the roles of men and women.[231]Gender-based violence may also be considered a form of gender-based discrimination prohibited under CEDAW.[232]The CEDAW Committee recognizes that pervasive sex-based stereotyping perpetuates social prejudices and contributes to gender-based violence.[233]Although the Committee's comments focus on violence against women, the phrase "gender-based violence" includes violence targeted against both men and women based on their sexual orientation or gender identity.Thus, men as well as women may be targeted for discrimination because they fail to conform to stereotypes based on gender or because they claim a gender identity that fails to conform to societal expectations.The measures enumerated by the CEDAW Committee to combat gender-based violence include instituting effective complaints procedures and remedies for survivors of gender-based violence, and ensuring appropriate medical care, counseling and support services.[234]States should adopt these sorts of measures to protect men, as well as women, from gender-based violence.

The right to privacy and the right to freedom from discrimination

Jamaica's sodomy laws (sections 76, 77, and 79 of the Offences against the Person Act) are meant, and used, to criminalize consensual sexual conduct between adult males, and are used to criminalize consensual sexual conduct between adult females.In the 1994 case of Nicholas Toonen v. Australia, the U.N. Human Rights Committee, which monitors compliance with and adjudicates complaints brought under the ICCPR and its Optional Protocol, held that sodomy laws punishing consensual, adult homosexual conduct violate the rights to privacy and nondiscrimination guaranteed by the ICCPR.[235]The Committee also noted that criminalization of homosexual practices hampered HIV prevention "by driving underground many of the people at risk of infection."[236]The Committee has thus urged states to bar discrimination based on sexual orientation.[237]

Since Toonen, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, and the CEDAW Committee have called for the repeal of laws criminalizing consensual adult homosexual conduct.[238]In the case of Trinidad and Tobago, the Human Rights Committee has urged that it extend the provisions of anti-discrimination legislation "to those suffering discrimination on grounds of age, sexual orientation, pregnancy or infection with HIV/AIDS."[239]

The U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions has observed that sodomy laws facilitate violence and human rights abuses against sexual minorities:

The Special Rapporteur further believes that criminalizing matters of sexual orientation increases the social stigmatization of members of sexual minorities, which in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life.Because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also more likely to be committed in a climate of impunity.[240]

Human Rights Watch recognizes the freedom of all people to follow their conscience in deciding whether to support or oppose homosexuality or homosexual behavior.However, rigid stereotyping of roles for men and women can lead to significant abuse of people who do not conform to those stereotypes and contribute to gender-based violence.Jamaica's obligations under international law to protect against gender-based discrimination require that it take "all appropriate measures" to "modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."[241]Moral objections to nonconforming sexual orientation or gender identity are not an adequate basis to avoid this obligation.

The U.N. Commission on Human Rights, the main political body within the U.N. system charged with human rights matters, interprets article 26 of the ICCPR, which "prohibit[s] any discrimination and guarantee[s] all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" as prohibiting discrimination based on HIV/AIDS.[242]

The non-binding U.N. International Guidelines on HIV/AIDS and Human Rights enjoin states to "enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities in the public and private sectors."[243]The guidelines advise that the laws cover health care and access to transportation (among other areas), and note particular areas where discrimination is likely and merit legal protection, including: (1) protection from discriminatory acts, including "HIV/AIDS vilification" and vilification of people who engage in same sex relationships; and (2) protection of confidentiality of medical information, including HIV status, and other personal information, and the need for disciplinary and enforcement mechanisms in cases of breaches of confidentiality.[244]

International law proscribing discrimination extends to discrimination in provision of transportation based on sexual orientation and HIV/AIDS.The U.N. Human Rights Committee has found that prohibitions on discrimination place a broad mandate on states to remedy unequal treatment in all areas of life, finding that article 26 of the ICCPR "prohibits discrimination in law or in fact in any field regulated or protected by the public authorities."[245]Jamaica is therefore responsible for providing protections against discrimination in transportation services (buses, taxis) subject to its regulation.

Freedom from arbitrary arrest and detention

The ICCPR and the American Convention protect the right to liberty and security of the person and prohibit all arbitrary detention.[246]The U.N. Working Group on Arbitrary Detention has affirmed that the detention of people solely on the basis of their sexual orientation violates fundamental human rights.[247]The ICCPR further provides an enforceable right to compensation for victims of unlawful arrest or detention.[248]The protections of the ICCPR and the American Convention are violated when state agents arrest or detain people on the basis of their sexual orientation, their consensual sexual conduct with others of the same sex, or their association with homosexual men and women and with sex workers.

Freedom of association and assembly

The ICCPR and the American Convention protect the rights of assembly and to freedom of association with others.[249]States violate these rights when police harass, arrest and otherwise abuse men who have sex with men, women who have sex with women, sex workers, and peer educators attempting to provide HIV/AIDS education and services to them.States also violate these rights when they promulgate laws that impede efforts by such people to organize to assert and defend their rights or hinder others from doing so on their behalf.In this respect, Jamaica's sodomy laws violate the rights to freedom of association and assembly.

Jamaica's failure to protect the rights of groups like the Jamaica Forum for Lesbians, All-Sexuals and Gays to safely convene has consequences for their ability to exercise other rights, as the U.N. has recognized.The U.N. General Assembly's Declaration on Human Rights Defenders has called attention to the role of the freedoms of association and assembly in the defense of all human rights.[250]Indeed, the Special Representative of the U.N. Secretary General on Human Rights Defenders has called attention to the "greater risks faced by defenders of the rights of certain groups as their work challenges social structures, traditional practices and interpretations of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups. Of special importance will be human rights groups and those who are active on issues of sexuality, especially sexual orientation."[251]

The right to the highest attainable standard of health

International law recognizes the human right to obtain life-saving health services without fear of punishment or discrimination.The International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the right to the highest attainable standard of health without discrimination based on certain prohibited grounds (including sexual orientation and HIV status) and requires governments to take all necessary steps for the "prevention, treatment and control of epidemic . . . diseases.[252]The Committee on Economic, Social and Cultural Rights has interpreted article 12 to require state parties to ensure access to information and services necessary for physical and mental health without discrimination based on HIV status and sexual orientation.[253]According to the CESCR, article 12 of the ICESCR also requires states to take affirmative steps to promote health, including ensuring that third parties do not limit access to health-related information and services and refrain from conduct that limits people's capacity to protect their health.[254]

Laws and policies that "are likely to result in . . . unnecessary morbidity and preventable mortality" constitute specific violations of the right to health.[255]Police interference with HIV prevention efforts and discriminatory access to health facilities and services are a blatant interference with the right to the highest attainable standard of health.Jamaica's failure to ensure that government and private actors do not interfere with the ability of men who have sex with men and women who have sex with women to receive health information and services and to protect confidential information about HIV status also violates the right to the highest attainable standard of health.[256]

Access to complete and accurate information about condoms and HIV/AIDS is recognized by article 19 of the ICCPR, which guarantees the "freedom to seek, receive and impart information of all kinds."[257] Parties to the ICCPR are obliged not only to refrain from censoring information, but to take active measures to give effect to this right.[258]The Committee on Economic, Social and Cultural Rights similarly stated that "information accessibility" is an essential element of the human right to health, noting that "education and access to information concerning the main health problems in the community, including methods of preventing and controlling them" are of "comparable priority" to the core obligations of the ICESCR.[259]

Access to HIV prevention services saves lives.Access to health care prevents people living with HIV/AIDS from unnecessary suffering and early death.The right to life is recognized by all major human rights treaties and, as interpreted by the U.N. Human Rights Committee, requires governments to take "positive measures" to increase life expectancy.[260]These should include taking adequate steps to provide accessible information and services for HIV prevention, and ensuring access to medical treatment for people living with HIV/AIDS.