IV. BACKGROUN D
HIV/AIDS in Jamaica
As of the end 2003, an estimated 22,000 people, or 1.5 percent of the adult population, were living with HIV/AIDS in Jamaica, the third largest population of people living with HIV/AIDS in the Caribbean region (after Haiti and the Dominican Republic).  HIV prevalence rates are very high among marginalized populations, including men who have sex with men and sex workers.The epidemic continues to spread in the general population. 
According to the Jamaican government's national HIV/AIDS program, in Jamaica HIV is predominantly transmitted through unprotected heterosexual sex and is increasing faster among women than men.  Ministry of Health statistics attribute 67.8 percent of AIDS cases to heterosexual sex and 5.4 percent to homosexual and bisexual sex combined.  The percentage of HIV cases acquired through male-to-male sexual contact is probably higher, however.The fact that homosexual sex is illegal, together with the strong stigma and discrimination attached to homosexual and bisexual behavior, may keep many men who have sex with men from admitting to having had sex with other men.The Ministry of Health has acknowledged that the fact that the large majority of cases of unknown transmission are among men suggests that rates of male-to-male transmission are higher than are reported. 
Several thousand Jamaicans are in urgent need of antiretroviral treatment, but as of this writing only a fraction of them are receiving it.  Jamaica secured funding in June 2004 to scale up access to treatment for people living with HIV/AIDS and made a public commitment to secure the lowest possible prices for antiretroviral drugs for all Jamaicans who need them.  However, in making concerted efforts to join the Free Trade Area of the Americas, Jamaica is subject to pressure by the United States Trade Representative to agree to trade policies that may undermine access to affordable antiretroviral medicines. 
Since 1987, the Jamaican government has launched several public awareness campaigns regarding HIV/AIDS, beginning with the theme "AIDS kills."National surveys report that a high level of knowledge about methods of HIV prevention coexists with belief in myths about HIV transmission.A 2000 survey reported that while more than 96 percent of Jamaicans could identify two or more ways to prevent HIV, a significant percentage of those surveyed subscribed to various myths about HIV, including the belief that HIV could be transmitted by casual contact (such as sharing food) and by mosquitoes.The survey also showed a dramatic rise in misconceptions about HIV transmission since 1996.  Health workers and people living with HIV/AIDS believe that the initial campaign had a lasting effect on public information about HIV/AIDS, leaving many with the impression that an HIV diagnosis means that death is imminent.According to Joanna W., a peer HIV/AIDS educator, "More than 96 percent of our people have information about HIV but how the information was given-'AIDS kills'-left a strong impression. . . . Many people don't understand that HIV can be with them a long time before they get AIDS." 
Homophobia in Jamaica and its role in driving the HIV/AIDS epidemic
Violence against men who have sex with men, ranging from verbal harassment to beatings, armed attacks, and murder, is pervasive in Jamaica.  Physical attacks against gay men and men perceived to engage in homosexual conduct are often accompanied by expressions of intent to kill the victim, such as "Battyman fi dead" [gay men must die].  They are reluctant to appeal to the police for protection, as police routinely deny them assistance, fail to investigate complaints of homophobic violence, and arrest or detain men whom they suspect of being gay.In some cases, the police attack them and promote homophobic violence by others.Women who have sex with women are also targets of community violence and police harassment; and, as with men who have sex with men, their complaints of violence are often ignored by police.
Endemic violence by private actors and by Jamaican police and security forces, and inadequate state response to it, are problems faced by all Jamaicans.  Gays and lesbians are often on the front lines of such violence, however.Jamaica's sodomy laws, which criminalize consensual sex between adult men, are used to justify arbitrary arrest and detention, and sometimes torture, of men (and sometimes women) suspected of being homosexual.Political and cultural factors, including religious intolerance of homosexuality, Jamaican popular music, and the use of antigay slogans and rhetoric by political leaders, also promote violence and discrimination based on sexual orientation and gender identity.While many of these actions are protected under the rights to freedom of speech and religion, the Jamaican government has failed to confront them as root causes of widespread violence and discrimination based on sexual orientation and gender identity.
The church, a powerful social institution in Jamaica, denounces homosexuality as a sin and Jamaica's Christian pastors preach strongly against it, sometimes justifying their opposition in cultural, as well as religious, terms.For example, in opposing the ordination of an openly gay cleric (a position not unique to Jamaican clergy), a Kingston-based Anglican priest stated that there was "no way that a Jamaican Anglican contingency could begin to support such a decision," because "Jamaican society is intolerant of homosexuality and homosexual behavior." 
Jamaican dancehall music, a powerful cultural force in Jamaican society, reflects and reinforces popular prejudices against lesbians and gay men.Many dancehall musicians perform songs that glorify brutal violence and killing of men and women who do not conform to stereotypical gender roles, and celebrate their social cleansing from Jamaica. 
High-level political leaders foster an atmosphere of violence toward men who have sex with men.During the 2001 elections, for example, the Jamaican Labour Party (the main opposition party) adopted "Chi Chi Man," which celebrates burning and killing gay men, as its theme song.  The ruling People's National Party responded by adopting as its campaign slogan for the 2002 national elections "Log On to Progress," a reference to a popular song and dance ("log on") involving kicking or stomping on gay men. 
Homophobic violence and discrimination, and state failure to respond to these abuses, violate internationally recognized human rights, including rights to privacy, nondiscrimination, and protection against violence.  These abuses are also closely linked to the spread of HIV/AIDS.Sodomy laws, which violate human rights to privacy and nondiscrimination,  undermine HIV/AIDS outreach to men who have sex with men.State failure to protect lesbian, gay, transgender, and bisexual people from violence and abuse by police and private citizens marginalizes them and inhibits them from seeking treatment for HIV and other sexually transmitted diseases that increase the risk of HIV transmission.The association of HIV/AIDS with homosexuality compounds the marginalization of many people living with HIV/AIDS, who face additional stigma and abuse through the presumption that they have engaged in illegal sex.It also keeps those at highest risk of the disease-including people who do not engage in homosexual sex-from seeking HIV-related information and health services.
The Jamaican Ministry of Health has acknowledged that homophobic violence and discrimination, and deep stigma associated with homosexuality, are among the factors driving the epidemic.  High-level officials from the Ministry of Health's HIV/AIDS program also recognize that Jamaica's sodomy laws create significant barriers to government provision of HIV services to men who have sex with men.
Providing HIV education and prevention services to men who have sex with men is extremely difficult because they are forced to remain invisible due to prejudice and abuse.  According to studies conducted by Jamaican and Caribbean regional health bodies, many Jamaican men who have sex with men lead dual lives and marry, have girlfriends, and have children while also engaging in same sex relationships.  Fear of being identified as homosexual may keep many people from seeking HIV testing and also from disclosing homosexual conduct as a possible risk factor if they test positive for HIV.  The invisibility of men who engage in homosexual conduct makes effective communication difficult, even among the men themselves.And the lack of information about their lives, practices, and community to guide public health interventions compromises an effective response to the epidemic.
In 1997, the mere suggestion that a task force was considering whether condoms should be issued to inmates and staff as part of HIV/AIDS prevention efforts in prison prompted a violent rampage and derailed HIV education efforts for years.After then Commissioner of Corrections John Prescod proposed that condoms be distributed to prisoners and correctional officers, correctional officers-apparently offended by the implication that by distributing condoms they, themselves, were also having sex with men-walked off their jobs.The officers did not return for several days, until they received an apology from the Commissioner and an agreement that condoms would not be distributed in prisons.Following the walkout by the correctional officers, inmates at two of Jamaica's largest prisons rioted.Sixteen prisoners were killed and more than fifty injured, apparently targeted because other prisoners believed that they were homosexuals. 
The popular misperception that HIV/AIDS is a homosexual disease impedes effective HIV prevention and poses serious risks for people living with HIV/AIDS.Health workers and AIDS outreach workers interviewed by Human Rights Watch reported that people with whom they worked-including hospital staff-did not believe that HIV was an issue for them personally because they were not homosexuals.A hospital-based health worker who provided HIV/AIDS prevention information and services to hospital staff and people in her town told Human Rights Watch, "When I tell them about HIV, they say . . . that HIV does not concern them, because it is a battyman [homosexual] disease." 
The conflation of HIV/AIDS with homosexuality exposes people living with HIV/AIDS and HIV/AIDS educators to the same treatment meted out to men who have sex with men.  ASHE Caribbean Performing Arts Foundation, an NGO that works with youth, includes HIV/AIDS and sexuality education as an important part of its work.Its work on HIV/AIDS, however, subjected it to threats, as the following note sent to the Jamaica Forum for Lesbians, All-Sexuals and Gays (J-FLAG) in July 2004 illustrates:
The nasty act of homosexuality will not be tolerated here in Jamaica. Let me say it quick.One notable battyman have died recently we will be killing more as the days go by.To make it easy for you we will tell you where you can pick them up and who it was that we gunned down. It will not be robbery just purification.No batty man down here in Jamaica. . . . . Fire burn them and them nasty living. JFLAG must crash. We declare war on all Gays and Homosexual. Ashe dance group needs a bit of clean up now. We will be killing gays and homosexuals daily now. War we say.  (emphasis added)
Lesbians and HIV risk
A woman without a man can be a target of both community disrespect and rape.
- Horace Levy, They Cry 'Respect'!Urban Violence and Poverty in
Although the risk of female-to-female HIV transmission is generally estimated to be small,  many women who have sex with women also have sex with men.Many Jamaican lesbians face strong pressure to establish relationships with men and to have children because doing so is a critical part of establishing their identity as adult women. 
Sexual violence against women and girls, a problem of grave proportions in Jamaica, has been identified by the World Health Organization as an important factor contributing to increased HIV incidence among women in the region.  Sexual violence may increase the risk of HIV and other sexually transmitted diseases for all survivors.  Forced or coerced sex creates a risk of trauma: when the vagina or anus is dry and force is used, genital and anal injuries are more likely, increasing the risk of HIV transmission.Forced oral sex may cause tears in the skin of the mouth, also increasing the risk of transmission.The presence of other sexually transmitted diseases also heightens HIV transmission risk.  Women who are or are perceived to be lesbians are at an even greater risk of rape, as they may be targeted for sexual violence based on both their gender and sexual orientation. 
 Joint United Nations Programme on HIV/AIDS (UNAIDS), 2004 Report on the Global AIDS Epidemic: 4th Global Report (Geneva: UNAIDS, 2004), p. 202.
 In 1994-1995, 25 percent of sex workers tested in Montego Bay were HIV-positive; in 1996, 9 percent of sex workers tested in Kingston were HIV-positive.From 1994-1996, HIV prevalence in major urban areas for men who have sex with men was more than 30 percent.UNAIDS, "Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections: Jamaica," 2004.See also Country Coordinating Mechanism for the Global Fund to Fight AIDS, Tuberculosis and Malaria, A Proposal to Scale UP HIV/AIDS Treatment, Prevention, and Policy Efforts in Jamaica, May 2003, http://www.theglobalfund.org/search/docs/3JAMH_661_0_full.pdf(retrieved August 27, 2004), p. 31 (stating that an estimated 20 percent of men who have sex with men and 25 percent of male and female sex workers were living with HIV/AIDS).
 Jamaica National HIV/STD Prevention and Control Program, "Facts and Figures, HIV/AIDS Epidemic Update 2004," http://www.moh.gov.jm/AIDS%20DATA%20JUNE%202004.pdf (retrieved August 9, 2004).
 Children comprise 7.7 percent of cases and the remaining 26.8 percent of cases are categorized as "unknown."Ibid.
 See ibid. (90 percent of cases of unknown transmission are among men); Ministry of Health, "Report of the Behaviour Change and Communication Task Force," 2001(noting large percentage of males among cases of unknown transmission and observing that "If we look at the literature on male sexual behaviour, and in particular the issues of socially condemned and therefore secretive sexual behaviour that would contribute to non-reporting, we find the continuum usually conflated as 'MSMs.'") (cited in Patricia Watson, "Coping in the Dark: HIV Prevention among the MSM Community in Jamaica," The Jamaica Gleaner, May 5, 2002).The Pan-Caribbean Partnership on HIV/AIDS (PANCAP) has reported a similar situation in the region.PANCAP, "Caribbean Regional Strategic Framework for HIV/AIDS 2002-2006," March 2002, p. 4.
 As of June 2004, an estimated 8000 people were in need of antiretroviral therapy, and 500 persons were receiving it.J. Peter Figueroa, chief, Epidemiology and AIDS, Ministry of Health, "Implementing Access to HAART in Jamaica," June 2004.
 First-line antiretroviral (ARV) therapy costs between U.S.$75 (generic) and U.S.$300 (brand name drugs) per month.In September 2004, the Ministry of Health began providing ARV therapy in the public sector for free or U.S.$8 pursuant to the Global Fund for AIDS, Tuberculosis and Malaria agreement.The Ministry of Health estimated that it would provide ARV therapy to 2000 people living with AIDS by late 2006.Global Fund Agreement, http://www.theglobalfund.org/search/docs/3JAMH_661_238_ga.pdf.
Jamaica, as a party to the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property (TRIPS), must ensure a minimum level of intellectual property protection.In 2001, WTO member states agreed that TRIPS "cannot and should not" prevent countries from taking measures to expand drug access and encouraged countries to use TRIPS mechanisms "to the full" in meeting their public health objectives.Jamaica is a party to negotiations to establish a Free Trade Area of the Americas (FTAA), covering thirty-four countries across the Americas and the Caribbean.The United States Trade Representative is attempting to include provisions in the FTAA that could inhibit Jamaica's (and other countries') flexibility to encourage generic drug competition and reduce the price of generic medicines.The negotiations are intended to be completed by end 2004, with the aim of launching the agreement in 2005.Concerns about Jamaica's domestic legal and policy commitments that conflict with FTAA proposals have slowed down negotiations, however.See Women's Edge Coalition, "The Effects of Trade Liberalization on Jamaica's Poor: an Analysis of Agriculture and Services," June 2004, pp. 70-75.
 Hope Enterprises Ltd., "Report of National Knowledge, Attitudes, Behaviour & Practice Survey.Year 2000."Prepared for the Ministry of Health, Jamaica.2000.
 Human Rights Watch interview with Joanna W., Kingston, June 6, 2004.
 See Robert Carr, "On 'Judgments:' Poverty, Sexuality-Based Violence and Human Rights in 21st Century Jamaica," The Caribbean Journal of Social Work, vol. 2 (July 2003), pp. 71-87 (finding that working class men who have sex with men are vulnerable to attack at any time in an atmosphere that sanctions and actively promotes such attacks); see also Cecil Gutzmore, "Casting the First Stone: Policing of Homo/Sexuality in Jamaican Popular Culture," Interventions, vol. 6, no. 1 (April 2004),pp. 118-134 (arguing that Jamaican homophobia is exceptional for its overt virulence at the expressive level and arguably encourages documented tendency and practice toward homophobic violence, and that the combination of disregard for the law, including by police and other state officials, and the high level of violence in the society put working class men who have sex with men especially at risk).
 Human Rights Watch interview with Nicholas C., Kingston, June 9, 2004; Human Rights Watch interview with Dennis M., Montego Bay, June 21, 2004; Human Rights Watch interview with Vincent G., Kingston, June 14,2004; Human Rights Watch interview with Curtis M., Ocho Rios, June 15, 2004; see also Robert Carr, "On 'Judgments:' Poverty, Sexuality-Based Violence and Human Rights in 21st Century Jamaica."
 See United Nations Special Rapporteur on Extrajuducial, Summary or Arbitrary Executions, "Report of the Special Rapporteur, Asma Jahangir, submitted Pursuant to Commission on Human Rights Resolution 2003/53.Addendum.Mission to Jamaica," E/CN.4/2004/7/Add.2, September 26, 2003; Jamaicans for Justice,The Jamaica Justice Report, 2002; Families Against State Terrorism, "How Many More?Sample of Police Killings July 1999-May 2004," May 2004; Amnesty International, "'Until Their Voices are Heard.'The West Kingston Commission of Inquiry," July 2003; International Commission of Jurists, "Attacks on Justice," August 2002, pp. 222-225; Anthony Harriott, Police and Crime Control in Jamaica: Problems of Reforming Ex-Colonial Constabularies (Kingston, Jamaica: University of the West Indies Press, 2001); Horace Levy, They Cry 'Respect'!Urban Violence and Poverty in Jamaica(Kingston, Jamaica: University of the West Indies Press, 2001).
"Kingston priests reject gay bishop.Jamaican society intolerant of homosexuality, says priest," The Jamaica Observer, October 30, 2003.
 Elephant Man's "A Nuh Fi Wi Fault," in which he sings that "When yuh hear a Sodomite get raped/but a fi wi fault/it's wrong/two women gonna hock up inna bed/that's two Sodomites dat fi dead" ["When you hear a lesbian getting raped/it's not our fault/it's wrong/two women in bed/that's two sodomites who should be dead"], Beenie Man's "I'm dreaming of a new Jamaica, come to execute all the gays," and Babycham and Bounty Killer's "Bun a fire pon a kuh pon mister fagoty, ears ah ben up and a wince under agony, poop man fi drown a yawd man philosophy" ["burn gay men 'til they wince in agony, gay men should drown, that's the yard man's philosophy"] are typical of the exhortations to kill and maim lesbians and gay men in many popular dancehall songs.For further discussion of homophobia in Jamaican dancehall and in popular culture, see Cecil Gutzmore, "Casting the First Stone;" Tara Atluri, "When the Closet is a Region," working paper no. 5, Centre for Gender and Development Studies, University of the West Indies, 2001; on dancehall and cultural formation, including the use of homophobia by dancehall artistes, see also Norman C. Stolzoff, Wake the Town and Tell the People: Dancehall Culture in Jamaica (Durham, N.C.: Duke Univ. Press, 2000).
 TOK, "Chi Chi Man," on Reggae Gold 2001 (2001) (lyrics cited in Appendix); see Garwin Davis, "Homophobia Remains High. Gays Remain in Seclusion, Health Officials Worry," The Jamaica Gleaner, July 26, 2001.
 Elephant Man, "Log On," on LOG ON (2002) (lyrics cited in Appendix).
Jamaica has ratified international and regional treaties proscribing these actions, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and the American Convention on Human Rights.See discussion at pages 66-73 below.
Nicholas Toonen v. Australia, Human Rights Committee, 50th Session, Case no. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (April 4, 1994).
 See, e.g., Jamaican Ministry of Health, Jamaica HIV/AIDS/STI National Strategic Plan 2002-2006, January 2002, p. 10; see also Zadie Neufville, "Fear Among Gay Men Said to Fuel HIV/AIDS Cases," Inter Press Service, March 5, 2002; Garwin Davis, "Homophobia Remains High.Gays Remain in Seclusion, Health Officials Worry," The Jamaica Gleaner, July 26, 2001.
 Ibid.; Human Rights Watch interview with Dr. Yitades Gebre, executive director, Ministry of Health Program Coordination Unit,Kingston, June 23, 2004; Human Rights Watch interview with Dr. Peter Figueroa, chief, Ministry of Health Epidemiology Unit, Kingston, June 23, 2004.
SeeCaribbeanRegionalEpidemiologyCenter, "Homosexual Aspects of the HIV/AIDS Epidemic in the Caribbean: A Public Health Challenge for Prevention and Control," 2000; Heather Royes, "Jamaican Men and Same-Sex Activities: Implications for HIV/STD Prevention," 1993.The subject of a Jamaican study of men who have sex with men and HIV/AIDS explained, "Society demands that a man should have a woman.To be labeled as gay or homosexual is a name no man likes.So as a result, men resort to play the game with same-sex and opposite sex activities.""Jamaican Men and Same-Sex Activities," p. 11.
See Ministry of Health, "Report of the Behaviour Change and Communication Task Force," 2001 (cited in Patricia Watson, "Coping in the Dark: HIV Prevention among the MSM Community in Jamaica," The Jamaica Gleaner, May 5, 2002).
 The riots were at the Tower Street Adult Correctional Centre in Kingston (Kingston general penitentiary) and St. Catherine's District Prison.Harold B., who was incarcerated at St. Catherine's District Prison during the riots, told Human Rights Watch that both prisoners and warders put his life at risk: "I couldn't walk free in prison because the warders would point me out [as a gay man]. . . . and prisoners were killing off gay men."Human Rights Watch interviewwith Harold B., Kingston, June 9, 2004.See also Ministry of National Security and Justice, "Report of the Board of Enquiry into Disturbances at the Tower Street Adult Correctional Center and the St. Catherine Adult Correctional Centre Between 20th-23rd August, 1997," March 9, 1998;Commission on Human Rights, Report of Special Rapporteur on Torture, "Question of the Human Rights of All Persons Subjected to Any Form of Detention orImprisonment, in Particular:Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," U.N. Doc. E/CN.4/2002/76/Add.1, March 14, 2002, par. 829.; Amnesty International, "A Summary of Concerns: A Briefing for the Human Rights Committee," October 1997, p. 14.
 Human Rights Watch interview, St. Ann's Bay, June 16, 2004.A 1993 study of Jamaican men who have sex with men and HIV/AIDS suggested that older bisexual men did not believe themselves at risk of HIV because they believed that HIV was a "gay" disease, and they did not identify as gay.Heather Royes, "Jamaican Men and Same-Sex Activities: Implications for HIV/STD Prevention," 1993, p. 12.
 Robert Carr, "Stigmas, Gender and Coping: A Study of HIV+ Jamaicans," Race, Gender & Class, vol. 9, no. 1 (2002), pp. 122-44.
 E-mail communication from firstname.lastname@example.org to J-Flag, July 14, 2004.
 (Kingston, Jamaica: University of the West Indies Press, 2001), p. 37.
 See Helena A. Kwakwa and M.W. Ghobrial, "Female-to-Female Transmission of Human Immunodeficiency Virus," Clinical Infectious Diseases, vol. 35, no. 3 (February 2003), pp. 40-41.
 See Robert Carr, "Stigmas, Gender and Coping: A Study of HIV+ Jamaicans," Race, Gender & Class (2002),vol. 9, no. 1, pp. 122-144 (discussing gender socialization in Jamaica).
 See Pan American Health Organization, "Gender and HIV/AIDS," http://www.paho.org/english/hdp/hdw/GHIVFactSheetI.PDF (retrieved November 3, 2004); see also United Nations Development Program, "National Reports on the Situation of Gender Violence Against Women: National Report, Jamaica," March 1999; Nancy Muturi,"Violence and HIV/AIDS in the Caribbean," presentation at the 2003 American Public Health Association meetings (arguing that high rates of sexual violence contribute to growing HIV/AIDS epidemic in Caribbean region).
 Women and girls are physiologically more vulnerable than men and boys to HIV infection during unprotected heterosexual vaginal sex.Factors that contribute to this increased risk include the larger surface area of the vagina and cervix, the high concentration of HIV in the semen of an infected man, and the fact that many of the other sexually transmitted diseases that increase HIV risk are often left untreated (because they are asymptomatic or because health care is inaccessible).Girls and young women face even greater risk than adult women, because the vagina and cervix of young women are less mature and are less resistant to HIV and other sexually transmitted infections, such as chlamydia and gonorrhea, that increase HIV vulnerability; because changes in the reproductive tract during puberty make the tissue more susceptible to penetration by HIV; and because young women produce less of the vaginal secretions that provide a barrier to HIV transmission for older women. See, e.g., Global Campaign for Microbicides, "About Microbicides: Women and HIV Risk," http://www.global-campaign.org/womenhiv.htm (retrieved August 28, 2003); UNAIDS, "AIDS: Five Years since ICPD-Emerging Issues and Challenges for Women, Young People, and Infants," Geneva, 1998, p. 11; The Population Information Program, Center for Communications Programs, The Johns Hopkins University, "Population Reports: Youth and HIV/AIDS," vol. 23, no. 3, Fall 2001, p. 7 (citing studies).
 See United States Centers for Disease Control and Prevention, Fact Sheet: Prevention and Treatment of Sexually Transmitted Diseases as an HIV Prevention Strategy [online], http://www.cdc.gov/hiv/pubs/facts/hivstd.htm (retrieved October 27, 2003).
 See discussion in Section V, below; see also Makeda Silvera, "Man Royals and Sodomites: Some Thoughts on the Invisibility of Afro-Caribbean Lesbians," Feminist Studies, vol. 18, no. 3, Fall 1992, pp. 521-532 (reporting gang rape of women "suspected" of lesbianism in 1950s Jamaican towns).