1. No category

Vol. 1, 2011 1
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Homophobia in the Caribbean:
Jamaica
Charlene L. Smith*
Ryan Kosobucki
I. INTRODUCTION
Various Non-Governmental Organizations
(NGOs) have recently stated that the ex-English
colonies of Jamaica, Trinidad, and Tobago are
among the most homophobic places in the world.1
* The authors would like to thank London Ott, a third-year student,
for her tremendous help on editing, footnote support, and citations for
the article. As the readers will be able to see, she had to make sure
sources supported the propositions in many non-law areas. She
contributed to the success.
1
See, e.g., Rebecca Schleifer, Human Rights Watch, Hated to Death:
Homophobia, Violence, and Jamaica‘s HIV/AIDS Epidemic 6–8
(2004) [hereinafter Human Rights Watch Report]. ―High-level
political leaders, including [the] [p]rime [m]inister...and [m]inister of
health...repeatedly refuse to endorse repeal of discriminatory
legislation, ignoring...international human rights standards....‖ Id. at
6. ―Jamaica‘s failure to take action to stop human rights abuses
committed by state agents, to take measures to protect against abuse
by state and private actors...violate its obligations as a state party to
regional and international human rights treaties.‖ Id. at 8. See also
Robert Carr, On ―Judgments‖: Poverty, Sexuality-Based Violence
and Human Rights in 21st Century Jamaica, 2 Carib. J. Soc. Work
71, 83 (2003).
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The authors explore the validity of these claims by
discussing some of the explanations, theories and
observations of these former colonies.2 While the
2
Scholars have conflicting opinions on the origin of Jamaican
culture. See Phillip Sherlock & Hazel Bennett, The Story of the
Jamaican People 30 (1998). Some argue that Jamaican history began
with the English colonization of the island in 1655; others reject this
theory and trace the roots of Jamaican history back to Africa. Id. ―To
begin with Africa is to affirm that the African-Jamaican people are
the makers of their history, and to reject the notion that their history
began with the arrival of Columbus in the 1490s or with the entry,
under compulsion, of African slaves into plantation America in the
sixteenth century.‖ Id. Once brought to Jamaica, each African
became a slave to a particular master and labored on the island‘s
sugar estates. Id. The masters viewed their slaves as property rather
than people. Id. at 30–31. The Eurocentric practices and opinions of
the British colonists demeaned the African-Jamaicans. Id. at 32.
Slaves born in Jamaica, or ―creole slaves,‖ signify a formative step
towards the acculturation, or ―Jamaicanisation‖ of African culture.
Mervyn C. Alleyne, Roots of Jamaican Culture 74 (1988). King
Charles II made Jamaica a royal colony in 1661, and English law
applied to the colony.
Jamaica in Slavery and Freedom: History, Heritage and Culture 75
(Kathleen A. Monteith and Glen Richards eds., 2002). For an indepth discussion of the colonization of Jamaica, see Trevor Burnard,
European Migration to Jamaica, 1655–1780, 53 Wm. & Mary Q. 769
(1996). Early on, Tobago caught the attention of the British, but
colonists did not attempt to create a settlement until 1625. Henry Iles
Woodcock, A History of Tobago 23 (1867). The English were also
the first to claim sovereignty of the island. Id. The English
subsequently fought with the French over possession of the island;
they did not secure their stake in Tobago until February 10, 1763,
when the French and English signed a peace treaty in Paris, which
relinquished possession of Tobago to England. Id. at 34. Trinidad
was first discovered by Christopher Columbus in his third voyage in
1498, and first colonized in 1588 by the Spaniards; it was taken by
Sir Walter Raleigh in 1595. Daniel Hart, Trinidad and the Other West
India Islands and Colonies 9 (2d ed. 1866). In 1676 the French
Smith, Kosobucki
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authors will focus on the influence that Britain had
in Jamaica, comparisons will also be made to other
ex-Caribbean colonies. The second portion will
examine the current homophobic climate through
observations from those living in, as well as outside
Jamaica. The third portion will be an introduction to
the norms and rules regarding homosexuality
emerging from plantation societies that began with
English laws and culture. The fourth portion will
discuss the cultural developments in the time
between the abolition of slavery and Jamaica‘s
independence. Explanations of what resulted after
independence will also be explored. To provide a
broader picture, there will be a discussion of the
religious roots of homophobia and African preChristian social values to determine whether they
present an ongoing barrier to change. The final
section will survey the current laws with regard to
same sex relationships between Caribbean men
along
with
the
enactment
of
laws
against
possessed it, but it was soon restored to Spain. Id. Trinidad was taken
by the British in 1797 after three centuries of Spanish rule. Id. at 11.
Smith, Kosobucki
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discriminatory treatment. The authors will conclude
by observing the different ways in which the West‘s
attitudes toward male homosexuality contrasts with
Jamaica‘s with a question: are we engaging in
―social colonialism‖ as many in the Caribbean
maintain?
II. Inside and Outside Perspectives
of Homosexuals in Jamaica
A. Within the Island
To best understand what it is to be a gay
Jamaican, it is important to hear the stories directly
from those who live their lives on the island. The
stories
will
be
entitled
―personal
narratives
anonymous‖ stories because story tellers are afraid
to reveal their true or full names—and scenarios
like the following are not atypical: Every evening at
about five o‘clock if he is on the streets, his heart
begins to pound. He starts seeking refuge inside
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because of his fear caused by a prior incident.3 ―A
group of men kicked him and slashed him with
knives for being a ―batty boy‖—a slang term for
gay men—after he left a party before dawn in
October 2006. They sliced his throat, torso, and
back, hissed anti-gay epithets, and left him for dead
on a Kingston corner.‖4 Andrew told the reporter
that he was a volunteer AIDS worker.5 ―He was
driven from the island after his ex-lover was killed
for being gay—which the police just said was a
robbery gone wrong.‖6 The police also treat gays as
if they deserved the violence. Sherman said after he
was attacked, the police ―roughly‖ carried him to
the police car and stuffed him in the trunk. Men
were standing around yelling at the police for
coming to any kind of aid for a batty-boy.7
3
David McFadden, Gays Live—and die—in fear in Jamaica,
Associated Press, July 20, 2009, available at
http://www.365gay.com/news/gays-live-and-die-in-fear-in-jamaica/.
4
Id.
5
Id.
6
Id.
7
Id. Homophobia is so pervasive in Jamaican society that the United
Kingdom granted asylum to three gay men in 2002, because
deportation to Jamaica would equate to a death sentence. Carr, supra
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B. Outsider Opinions
Not only do the insiders tell horrifying tales,
but outside organizations confirm their experiences.
Human Rights Watch, located in New York City,
describes itself as ―one of the world‘s leading
independent organizations dedicated to defending
and protecting human rights.‖8 The organization is
well-known for doing reports from different
countries on various human rights issues. The report
on gays in Jamaica is entitled Hated to Death:
Homophobia, Violence and Jamaica‘s HIV/AIDS
Epidemic.9 The report catalogs the violent acts
against gay men. There is no sanctuary for gays,
note 1, at 72. In this same year, the British newspaper, The Observer,
reported that ―[m]ore than 30 gay men have been murdered in
Jamaica in the past five years....‖ Id. Homosexual Jamaicans cannot
look to their government for protection from violence, because it too
harbors anti-gay sentiments. McFadden, supra note 3. For example,
Bruce Golding, Jamaica‘s Prime Minister, wishes to keep the island‘s
―buggery law‖ on the books, and refuses to allow gays to serve in his
Cabinet. Id. ―Buggery‖ generally refers to all of bestiality or anal
intercourse; considered a felony in Jamaica, buggery carries a
punishment of up to ten years imprisonment with hard labor. Human
Rights Watch Report, supra note 1, at 21–22.
8
About Us, HRW.ORG, http://www.hrw.org/en/about (last visited
Oct. 15, 2010).
9
See Human Rights Watch Report, supra note 1.
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and the police, according to the report, themselves
harass gays. Because HIV/AIDS is conflated with
being gay, those who have the disease have no
recourse to health resources.10
Even the more commercial Time Magazine
refers to Jamaica as the ―Most Homophobic Place
10
Id. According to Human Rights Watch (HRW), Jamaica engages in
state-sponsored discrimination and abuse towards homosexuals, as
well as those afflicted with HIV and AIDS. Human Rights Watch
Report, supra note 1, at 17. The state denies treatment to those with
HIV/AIDS by refusing to provide access to both private and public
means of transportation (often necessary to reach a medical treatment
facility). Id. Moreover, persecution at the hands of police officers
makes those living with HIV/AIDS fearful of falling victim to
violence if they seek treatment in their community. Id. As HRW
describes, ―[p]olice abuse is a fact of life for many [gay men and
women] in all of the communities that Human Rights Watch visited
in Jamaica...[p]olice abuse is so profoundly destructive because it
creates an atmosphere of fear sending a message to other lesbian,
gay, bisexual, and transgender people that they are without any
protection from violence.‖ Id. at 21.
On the afternoon of June 18, 2004, a mob chased and reportedly
―‗chopped, stabbed, and stoned to death‘‖ a man perceived to be gay
in Montego Bay. Several witness reported to Human Rights Watch
that police participated in the abuse that ultimately led to this mob
killing, first beating the man with batons and then urging others to
beat him because he was homosexual.
Id. at 18. In addition to outright physical abuse, Jamaican police
frequently arrest, detain, or prosecute gay men and women based on
their actual or perceived sexual orientation. Id. at 21.
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on Earth.‖11 Offering evidence to the title the author
observes:
In the past two years, two of the
island's most prominent gay activists,
Brian Williamson and Steve Harvey,
have been murdered—and a crowd
even celebrated over Williamson's
mutilated body. Perhaps most
disturbing, many anti-gay assaults
have been acts of mob violence. In
2004, a teen was almost killed when
his father learned his son was gay
and invited a group to lynch the boy
at his school. Months later, witnesses
say, police egged on another mob
that stabbed and stoned a gay man to
death in Montego Bay. And this year
a Kingston man, Nokia Cowan,
drowned after a crowd shouting
―batty boy‖…chased him off a pier.12
The concern is not coming solely from the
United States. Global Watch, which is incorporated
in The Netherlands, has the following to say about
11
Tim Padgett, The Most Homophobic Place on Earth?, TIME.COM
(Apr. 12, 2006),
http://www.time.com/time/world/article/0,8599,1182991,00.html.
12
Id.
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remarks made on a televised broadcast made by
Prime Minister Bruce Golding explaining why he
does not allow gays in his cabinet: ―many
Jamaicans seemed pleased and proud that their
prime minister was standing up to what they see as
international pressure to conform to an alien
morality.‖13 The web piece noted that there seemed
to be only a few public voices that spoke out against
such blatant homophobia. Global Watch gave
bloggers a chance to voice their reaction to the
speech. The blogging pattern generally agreed that
what else could be expected from Jamaica and that
perhaps Golding really was rather mild in his
responses to the BBC interviewer compared to what
he might actually think.14
13
Nicholas Laughlin, Jamaica, Caribbean: No Gays in Golding‘s
Government, Global Voices (May 23, 2008),
http://globalvoicesonline.org/2008/05/23/jamaica-caribbean-no-gaysin-goldings-government/.
14
Id.
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III. HISTORICAL BACKGROUND: ENGLAND
The roots of Jamaican homophobia have
many tendrils. The logical place to start is to start
by examining the British influence. England had a
long tradition of condemning sex between men (or
animals).15 Buggery, as it was referred to in the 16th
Century, was illegal. Most historians trace the antibuggery law to the following act:
Forasmuch as there is not yet
sufficient and condign punishment
appointed and limited by the due
course of the laws of the Realm for
the detestable and abominable vice
of buggery committed with mankind
or beast; It may therefore please the
King‘s Highness with the assent of
his Lords spiritual and temporal and
the Commons the present parliament
assembled that it may be enacted by
authority of the same, the same
offence be from henceforth adjudged
felony, and such order and form of
process therein to be used against the
15
Leslie J. Moran, The Homosexual(ity) of Law 2 (1996).
Smith, Kosobucki
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offenders as in cases of felony at the
common law.16
Not just an ordinary felony, buggery was punishable
by life imprisonment.17 Despite the fact that life
imprisonment was mandated, buggery was rarely
charged and instead the English police charged men
16
Id. at 22. This act contains the first reference to buggery in English
law. Id. England has since developed more modern laws concerning
homosexual acts. Id. at 21. The Sexual Offenses Act of 1967 states
that a private homosexual acts are not unlawful so long as all parties
involved have consented and are at least twenty-one years old. Id.
Section One of the Act provides: ―Notwithstanding any statutory or
common law provisions, but subject to the provisions of the next
following section, a homosexual act in private shall not be an offence
provided that the parties consent thereto and have attained the age of
twenty-one years.‖ Moran, supra note 15, at 21.
17
Id. at 23. Buggery‘s special position in English law is attributed to
three key factors: First, those who committed buggery were more
likely to commit other crimes, such as prostitution and other
homosexual acts, and this propensity for criminal conduct made these
offenders more difficult to treat and ―reform.‖ Id. at 24. Therefore,
―the exceptional status of buggery symbolized not so much a
distinctive act but an exceptional and extreme pathological
individual.‖ Id. Second, the English believed that the very act of
buggery constituted an exceptionally damaging moral offense. Id.
Third, the English considered buggery as a ―thing apart‖ from other
homosexual acts because they believed that, aside from the harm it
caused the individual committing the act, buggery posed a danger to
society in general. MORAN, supra note 15, at 24. Those found guilty
of committing buggery were buried alive, burned at the stake, or
hanged. Id. at 23. Oddly, the law was not intended for women. Id. at
21.
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with indecent assault or gross indecency which
carried far less punishment.18
As the British became colonizers, one of
their first worries was about their naval fleets
becoming socially contaminated from their ever
growing empire.19 The remedy was to make sodomy
a
court
martial
crime
with
death
as
the
punishment.20 In practice, however, results varied.
18
Id. at 22–24.
Arthur N. Gilbert, Buggery and the British Navy, 1700–1861, 10 J.
Soc. Hist. 72, 72–98 (1976). British Navy records reveal an even
greater degree of intolerance towards buggery than that of the civil
court system. Id. at 72. Today, the British Navy still considers
sodomy as a ―threat to the ongoing life of the service.‖ Id. ―By
1700...250,000 settlers and slaves were already living in England‘s
mainland colonies [alone, and] the population was doubling every
twenty-five years....In the struggle for empire, a growing population
became Britain‘s greatest asset.‖ John M. Murrin Et Al., Liberty,
Equality, Power: A History of The American People 125 (5th ed.
2008).
20
Gilbert, supra note 20, at 72. Although sodomy carried severe
punishment, courts had some difficulty determining whether one had
actually committed sodomy, because Parliament never precisely
defined the act. Id. at 73. However, in 1828, ―Parliament passed a law
in which proof of penetration became the sole criterion for separating
attempted rape and sodomy from commission of the crime, in part
because of the difficulty encountered in convicting men of these
offenses.‖ Id. Additionally, even minor offenses carried severe
punishments. Id. at 78. ―Courts martial records show that ferocious
punishments indeed were often given for minor sexual offenses. Id.
In 1775, [an officer named] A. Parrott was accused of attempted
sodomy by a sixteen year old boy who said the prisoner had ‗come to
his hammock‘ where he immediately began feeling his private parts.‖
19
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A British captain who was having sex with a
thirteen year old boy was told he must live abroad
for the rest of his life.21
Not only was it the naval fleet that
concerned the British sense of morality, but also
included
were
men
who
became
colonial
administrators and other officials whose duty took
them places where wives did not accompany
them.22
The Victorian Age brought some relief
toward the attitudes regarding buggery, but the
more relaxed attitude was only offered to the ―upper
crust.‖23
It
was
evidently
commonplace
for
Gilbert, supra note 20, at 78. Parrott was given three hundred lashes
for this offense. Id. Between 1703 and 1710, six of the twenty-two
death sentences in the Royal Navy resulted from buggery
convictions. Id at 79.
21
Netta et al., The Worst of Crimes: Homosexuality and the Law in
Eighteenth-Century London 36 (1998). It has been noted that it was
far more likely to be hanged for being a highwayman than for
sodomy. Id. at 37.
22
Alok Gupta, Human Rights Watch, This Alien Legacy: The
Origins of ―Sodomy‖ Laws in British Colonialism 13 (2008).
23
Ronaly Hyam, Empire and Sexuality: The British Experience 56
(1990). However, ―[a]fter 1750 aristocrats whose effeminacy was too
obvious found that, while they were tolerated socially for their
amusing tongues, they were very likely to be excluded from a share
in real political power by those aristocratic men whose taste was now
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boarding school boys to engage in same-sex
activity.24 For instance, an account remembered by
a Harrow student:
Every boy of good looks had a
female name, and was recognized
either as a public prostitute or as
some bigger fellow‘s ―bitch.‖ Bitch
was the word in common usage to
indicate a boy who yielded his
person to a lover. Here and there one
could not avoid seeing acts of
onanism, mutual masturbation, and
the sports of naked boys in bed
together.25
Additionally most British men did not marry
until they were twenty nine years old and 10 percent
exclusively for women.‖ Randolph Trumbach, Sex, Gender, and
Sexual Identity in Modern Culture: Male Sodomy and Female
Prostitution in Enlightenment London, 2 J. Hist. Sexuality 186, 188
(1991).
24
See Hyam, supra note 24, at 59. ―On arrival [to boarding school] in
1817, [one student] found the first order he received from a
schoolmate was ‗come and frig me.‘‖ Id. Furthermore, ―[b]oys in
boarding schools usually shared beds before the 1850s, and we
cannot automatically assume that one thing did not lead to another.‖
Id.
25
Id. Harrow is among the most affluent of British boarding schools.
See id.
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of them never got married.26 The outlet for many
was both same sex sexual activity and prostitution.27
For heterosexual men during the Victorian times,
the concept of masculinity also transmographied
from living the clean life to living the athletic life,
which
certainly
contained
elements
of
machismoism.28 These ideas and attitudes were
transferred to the colonies.29
26
Hyam, supra note 24, at 59. English courts never prosecuted
women who engaged in sexual relations with other women.
Trumbach, supra note 25, at 191.
27
Hyam, supra note 24, at 59–60. In 1698, Thomas Bray, who had an
instrumental role in organizing the ―Societies for the Reformation of
Manners,‖ made the very first remark acknowledging the increase in
prostitution. Trumbach, supra note 25, at 195. After 1750, it became
quietly accepted that men needed a sexual outlet that they could not
obtain in marriage. Id. Consequently, constables no longer arrested
men discovered with prostitutes, even though it had been
commonplace to do so until 1730. Id. Scholars attribute England‘s
lassiez faire attitude towards prostitution to a strong desire to curb
sodomy. Id. at 195–96. Prostitution provided a more acceptable
alternative; so long as this channel remained open, then perhaps
fewer men would engage in sodomy. Id.
28
Id. at 72 (citing David Newsome, Godliness and Good Learning:
Four Studies on A Victorian Ideal 216 (1961)).
29
See id.
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A. In the Colonies
Needless to say, the Anglos in the English
Caribbean Colonies were subject to the common
law. The need for a sodomy law for the Colonial
British became even more important as they
conquered and controlled more countries. Their
attitudes toward the location of the Caribbean
colonies, which were close to the equator, prompted
them to be even more wary.30 Heat, according to
British lore, promoted promiscuity and certainly the
potential for same-sex activity.31 Throw in slavery
30
Slaves arrived in Jamaica through ―forced extraction...from their
homelands‖ in Africa. Alleyne, supra note 2, at 69. It is this ―forced
extraction‖ from Africa that fostered a desire to resist not only
enslavement but also acculturation. Id. ―By 1786, more than 600,000
slaves had been brought to the island...primarily from West Africa.‖
Suzanne Lafont, Very Straight Sex: The Development of Sexual
Morés in Jamaica, 2 J. Colonialism & Colonial Hist. 24, 28.
The concept of marronage, embodying both political, physical, and
cultural resistance, is essential for an understanding of cultural
history in Jamaica ....A symbiotic interaction developed between
culture and resistance. The will to resist required the preservation of
some functional distinctiveness in culture, upon which the success of
the resistance depended; and the success of the resistance in turn
contributed to the preservation of an African-type base culture.
Alleyne, supra note 2, at 69.
31
Robert Aldrich, Colonialism and Homosexuality 4 (2003).
―[C]ommentators opine[] (with little evidence) that hot climates
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and racism and an incendiary mixture results, all of
which the British attempted to control.
Various observers indicate that slavery in
the Caribbean was the basic ingredient to the
growth of capitalism.32 In order to initiate the
process of making sugar exportable, the English
plantation owners needed inexpensive workers.33
The logical choice was to export slaves from Africa
since that was the cheapest source.34 More than
300,000 slaves had been captured and brought to
Jamaica by mid-1700‘s.35 After the African slaves
arrived, the concept of master-slave creed became
favoured homosexual vice, and that colonials [who fell] prey to the
cafard—a general malaise induced by hot weather, rough conditions,
loneliness and boredom—were prone to sexual excess.‖
32
Gordon K. Lewis, Main Currents in the Caribbean Thought: The
Historical Evolution of Caribbean Society in its Ideological Aspects,
1492–1900, 94–96 (1983). According to Lewis, slavery ―constituted
an integral part of the emerging Atlantic capitalist system; its main
purpose, therefore, was the maximization of profit.‖ Id. at 94.
Slavery, first and foremost, functioned to accumulate capital to
facilitate capitalist expansion in Europe. Id. at 95.
33
Id.
34
Id. at 96. ―[T]he Caribbean planter oligarchy turned to the African
labor supply, not because it was black, but because it was
cheaper....Negro slavery was thus the end result of an economic
revolution in the Caribbean economy, not the outcome of a racebased preference for black labor.‖ Lewis, supra note 30, at 96.
35
Diana Paton, Punishment, Crime, and the Bodies of Slaves in
Eighteenth-century Jamaica, 34 J. Soc. Hist. 926 (2001).
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engraved in the culture.36 Racism permeated the
social and legal customs in order to justify
slavery.37 The plantation elite hid their racism
behind the rationalization that Africans were being
liberated from an intolerable living situation.38 The
slaves, according to the ‗masters,‘ were much better
off being Jamaican slaves than living in barbaric
Africa.39 Since slavery was so vast in numbers in
Islands like Jamaica, it was impossible to hide the
‗set up‘ as some other countries managed to do.40
Not only was slavery deemed the only choice for a
plantation culture, the elites would not tolerate any
alternatives.41 Despite the effort to de-Africanize
the blacks, they were able to keep many of their
cultural beliefs probably due to the fact that blacks
outnumbered whites in Jamaica 11 to 1.42 There was
also constant conflict by the plantation society with
36
Eric Williams, From Columbus to Castro: The History of the
Caribbean 98–99 (1970).
37
Id. at 98.
38
Id. at 100.
39
Id.
40
Id. at 98.
41
Williams, supra note 34, at 103–06.
42
Id.
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the Maroons who had escaped from slavery and
organized their own societies in the remote areas of
Jamaica.43
While the British faithfully hung on to their
common law background, the rights and privileges
were not granted to the slaves. Reflecting the
43
After years of resisting British rule of the island, the Maroons
entered into two peace treaties with England in 1738 and 1739. Lady
Blake & Edith Blake, The Maroons of Jamaica, 167 N. AM. REV.
558, 561; Kenneth M. Bilby, True-Born Maroons 273–274 (2005).
Under the treaties, England granted the Maroons particular tracts of
land without taxation and the Maroons would assist the British to
fight against foreign or domestic enemies when called to do so. Lady
Blake & Edith Blake, The Maroons of Jamaica, 167 N. Am. Rev.
558, 561. Additionally, ―the Maroons were to restore all runaway
slaves to their owners, receiving a reward for so doing as the
legislature should appoint, and in each of their settlements or ‗towns,‘
a they were called, two white men were always to reside.‖ Id. The
Maroons lived peacefully with the British until 1773, when conflict
resumed. Id. When the British invaded Jamaica on May 10, 1655, the
Spanish, who already occupied the island, were ill-equipped to
defend themselves and either fled to the mountains or left the island
entirely in ships provided by the British. Carey Robinson, The Iron
Thorn: The Defeat of the British by the Jamaican Maroons 6–7,
(1993). The Spaniards‘ African slaves took to the Jamaican
countryside if they did not remain with their masters—these
individuals became the first Maroons of Jamaica. Id. ―The origins of
the word ‗Maroon‘ are not well-established. According to the
historian Long, the name ‗Maroon‘ probably comes from the Spanish
[word] ‗marran,‘ a sow or young hog .... Others believe that ‗Maroon‘
is a corruption of the Spanish [word] ‗cimarron,‘ meaning ‗wild‘ or
‗unruly.‘‖ Id. at 7. See generally Howard Harris, Maroons: Violence
and Confrontation with the Planters, Slave Resistance: A Caribbean
Study,
http://scholar.library.miami.edu/slaves/Maroons/individual_essays/ho
ward.html.
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themes of power, control, and insistence that the
plantation well-being continued, a Slave Code was
passed in 169644 and evolved over time into a Code
that
largely
focused
on
preventing
slave
rebellions.45 Slaves could not have any access to
weapons and owning property was forbidden—
including horses, mules and asses.46
There were special slave courts where trials,
without juries, took place.47 Punishment was akin to
what would be considered torture now.48 Chopping
off feet or castration was for lesser crimes.49
44
Robert Worthington Smith, The Legal Status of Jamaican Slaves
Before the Anti-Slavery Movement, 30 J. Negro Hist. 293, 293 (1945)
(discussing An Act for the Better Order and Government of Slaves, 8
William III, Cap. 2 (1696), Acts of Assembly passed in the Island of
Jamaica 1681–1737 (1738)); Paton, supra note 33, at 926. Although
an official slave code did not exist until 1696, certain slave laws
already existed in 1661. Robert Worthington Smith, The Legal Status
of Jamaican Slaves Before the Anti-Slavery Movement, 30 J. Negro
Hist. 293, 293 (1945). The colonists needed to create legislation
governing the slaves of Jamaica because the English Common Law
did not apply to them; ―[n]egroes were a class apart, a servile class
which possessed no natural nor civil rights within the community.‖
Id.
45
Id.
46
Id. at 297.
47
Id.
48
Id.
49
Smith, supra note 42, at 300.
Smith, Kosobucki
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Burning alive was saved for the major crimes.50
There was no law prohibiting slave owners from
dishing out any punishment they saw fit.51 If a slave
died in the course of punishment, the Slave Code
said, ―noe person shall be accompatable to any
law.‖52
Not only were crimes committed by black
slaves subject to unbelievable cruelty, but slaves
were also controlled in all of their relationships.
They were prohibited from marrying until 1826.53
This law also allowed slaves‘ owners to sell black
women who wanted to marry the fathers of their
children.54 The prohibition also reinforced the belief
that blacks were promiscuous and provided an
50
Id. at 301. However, by 1717, the Code made it illegal for the
owners to dismember their slaves. Paton, supra note 33, at 926–27.
51
Id. at 926.
52
Id. This 1696 slave code remained largely unchanged until 1788.
Id.
53
LaFont and Pruitt, For Love and Money: Romance Tourism in
Jamaica, 2 Annals Tourism Res. 422, 442– 40.
54
Id.
Smith, Kosobucki
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excuse for the white masters to have sex with black
women.55
B. End of Slavery
Due to the abolitionist movement in the
mid-1800‘s, the British knew slavery was coming to
an end. Some thought the best way to make this an
easier and more enlightened transition was to
prepare slaves for freedom but more importantly to
‗civilize‘ them.
56
Thus black schools were
established.57 Many plantation owners opposed the
idea
because
uprisings.
58
they
equated
knowledge
with
The plantation owners were correct
55
Suzanne Lafont, supra note 30, at 24–25. LaFont observes that the
sexual exploitation of black slave women had become commonplace
in Jamaica because ―[c]ontrol over female slaves‘ sexualities by elites
was institutionalized formally and informally. Id. at 25. For example,
slave owners prostituted their female slaves frequently enough for it
to be described as a ‗very common thing‘ in the House of Commons
during the 1790-91 Inquiry into the Slave Trade.‖ Id.
56
Olwyn Mary Blouet, Slavery and Freedom in the British West
Indies, 1823–33: The Role of Education, 30 Hist. Educ. Q. 625, 625.
(1980).
57
Id. at 627.
58
Id. at 628. Plantation owners wanted their slaves to remain
illiterate; if slaves could read, then perhaps they could use this
newfound ability to read seditious materials or even plan an
insurrection. Id. Furthermore, to the slave owners, literacy signified a
Smith, Kosobucki
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since the decade before emancipation slave
rebellions increased. 59
Finally in 1834 slavery was abolished.60
While the Act freed the slaves, it also compensated
the ‗owners‘ for their property losses.61 It further
provided for ‗apprenticeships‘ which in essence
made the ‗ex-slave‘ work for forty-five hours a
week for six years without pay.62 Finally, in 1838,
degree of independence that was ―inconsistent with the slave
condition.‖ Id.
59
Blouet, supra note 54, at 638–39. Plantation owners attributed this
increase in uprisings to the missionaries‘ efforts to educate and
humanize the slaves. Id. at 638. The theory that education enabled
revolt is substantiated by the fact that ―[c]hurch and school meetings
gave slaves opportunity to discuss and plan insurrection.‖ Id. at 639.
Furthermore, several of the slaves that lead the uprisings were
literate. Id. With regard to the Jamaican Rebellion specifically,
slaves‘ exposure to and ability to read abolitionist ideas expressed in
British newspapers acted as a catalyst to this uprising. Id. See
generally Mary Reckord, The Jamaican Slave Rebellion of 1831, 40
Past & Present 122 (1968).
60
O. Nigel Bolland, Systems of Domination after Slavery: the
Control of Land and Labor in the British West Indies, 23 Comp.
Stud. Soc‘y & Hist. 591, 591–92 (1981).
61
Id. at 594. The Act vested authority in the treasury to raise and
distribute a total of twenty million pounds to plantation owners who
lost their slaves as a result of the Act. Id.
62
Id. This apprenticeship system was met with substantial opposition
from the apprentices themselves, who instead wanted absolute
freedom. Id.
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the apprenticeship measure was abolished.63 Then,
the plantation owners turned to a rent free system,
that is, if the ex-slaves would work in the fields
without pay or very reduced pay, they could live
rent free in the ex-slave quarters.64 By the 1840‘s,
most ex-slaves had moved out and Jamaica
abandoned that system.65 Because land was
plentiful on the island, by 1861, 50,000 former
Jamaican slaves owned land.66
C. Independence
Even though the British lost their direct
influence on Jamaica, their legacy remained behind.
Jamaican independence went through several
63
Bolland, supra note 58, at 594. In an effort to circumvent the
abolishment of the apprenticeship system, ―[t]he masters, for so they
still considered themselves, tried a variety of techniques of labor
control after 1838 throughout the British West Indies. Id. These
included enactment of laws to restrict emigration and ‗vagrancy,‘
various forms of taxation to pressure people into wage labor, and the
development of systems of police, magistrates, and prisons to punish
those who broke the new labor laws.‖ Id.
64
Id. at 596.
65
Id. at 597.
66
Bolland, supra note 58, at 599.
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stages. After World War II, the British attempted to
create a West Indies Federation.67 Jamaica was part
of the Federation until they won total sovereignty in
1962.68
Congruent
with
moving
toward
independence were divisions within the society
mostly constructed on race.69 White elites, who
were the middle class, were the ones who were
largely responsible for mobilizing the nationalist
movement.70 For that reason, the laws after
independence mirrored British law.
M. Jacqui Alexander brilliantly explained
why the British colonies, after winning liberation,
became even more focused on making sure male
67
Jamaica in Slavery and Freedom: History, Heritage and Culture,
supra note 2, at 363–83.
68
Id.
69
Id.
70
M. Jacqui Alexander, Not Just (Any) Body Can Be a Citizen: the
Politics of Law, Sexuality and Postcoloniality in Trinidad and
Tobago and the Bahamas, 48 Feminist Rev. 5, 13 (1994). The middle
class ―élites‖ accomplished this by ―mobiliz[ing] consensus for
nation building, mould[ing] psychic expectations about citizenship
and sovereignty, self-determination and autonomy from foreign
mandates. Id. During this movement, women demonstrated their
patriotism by guarding and fostering Jamaica‘s system of values; men
did so by serving their country and adopting ―the morés of
respectability.‖ Id.
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same sex relationships were not permissible.71 Her
thesis is that in order to politically control the shaky
islands after independence, those in power had to
criminalize male homosexuality.72 To bring order it
is necessary to decide how citizenship will be
defined.73 Jamaica, like other islands, decided not
everyone could be a citizen and a hierarchy was
established.74 Heterosexual males were given the
highest status.75 Patriarchy reigned supreme.76
―[N]aturalized
heterosexuality
shap[ed]
the
definitions of respectability, Black masculinity and
nationalism.‖77 Any kind of non reproductive sexual
activity was considered ―nasty.‖78 According to
Alexander, the focus on heterosexual patriarchy was
71
Id. Even though Professor Alexander focuses on Trinidad, Tobago
and the Bahamas, her ideas equally apply to Jamaica.
72
Id.
73
Alexander, supra note 68, at 6.
74
Id.
75
Id.
76
Id.
77
Id. at 7.
78
See, e.g., LaFont, supra note 30, at 24. All of LaFont‘s
interviewees ―described oral sex as nasty and claimed to have never
engaged in it .... When asked [about anal sex, interviewees]
considered it a preposterous and dirty act, wondering why anyone
would engage in anal sex if ‗real [vaginal] sex‘ was available.‖ Id. at
26.
Smith, Kosobucki
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under-scored by economics with those in power
representing the upper classes.79 Black males, in
order to lead the country, had to ―demonstrate moral
rectitude, particularly on questions of paternity.‖80
In essence, countries like Jamaica ―had come to be
shaped by what it had opposed.‖81
Although Professor Alexander‘s focus is
primarily on the Bahamas, Trinidad and Tobago,
the ideas are equally at home in Jamaica. The
islands are concerned about becoming ―culturally‖
contaminated by the West.82 Further, Jamaica places
a
premium
on
respectability.83
Personal
respectability demands that the individual Jamaican
distance themselves from any ―nastiness‖ like oral,
79
Alexander, supra note 68, at 13.
Id. at 15.
81
Id. at 15 (referencing Benedict Anderson, Imagined Communities:
Reflections on the Origin and Spread of Nationalism, London Verso
(1983)).
82
Id.
83
LaFont, supra note 30, at 52. Social mobility for the growing class
of freed slaves and mulattos required respectability .... This
emphasis...shape[d] sexual morés. Id. Consequently, ―acceptable
sexual behavior became more narrowly defined. Marriage was never
a prerequisite for sexual activity, but sex itself needed to be
respectable—no ‗nastiness‘ such as oral, anal, or same-sex sexual
behavior.‖ Id.
80
Smith, Kosobucki
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anal or same-sex activity.84 The predominate
Jamaican attitudes are captured in a letter to the
editor published by the Jamaica Gleaner, a
newspaper started in 1834.85 The writer remarks
that ―homosexuality is immoral‖ from a Christian
perspective in the same way that incest or adultery
are.86 Even private consensual sex between the
same genders, according to the writer, is immoral
and unacceptable according to Christian beliefs.87
He warns that Jamaica will face the wrath of God if
84
Id. at 54. ―Although homophobia is well-known and widespread in
Jamaica, sexual intolerance extends beyond homophobia to the
condemnation of homosexual and heterosexual oral and anal sex acts
....‖ Id. at 25.
85
Patrick A. Gallimore, Letter to the Editor, Homosexuality Is
Immoral, Jamaica Gleaner, March 29, 2006, available at
http://www.jamaicagleaner.com/gleaner/20060329/letters/letters4.html. The letter writer
opines, ―If Jamaica is a Christian country and calls itself a Christian
country, then the gay and lesbian lifestyle must be deemed absolutely
immoral and unacceptable ....‖ Id.
86
Id. The letter writer typifies such widely-held views among
Jamaicans. In fact, ―fear[] and disgust of homosexuality [is]
commonly expressed, particularly in ... Jamaican communities.‖
Annecka Leolyn Marshall, Jezebels, Soca and Dancehall Divas: The
Impact of Images of Femininity Upon Social Policies and Gender
Relationships in the Caribbean 10 (2006). See also, e.g., LaFont,
supra note 30, at 25. ―Tolerance of [homosexual activity] is seen not
only morally reprehensible but also as un-Jamaican—tarnishing the
national image. Anti-sodomism, on the other hand, is regarded as a
virtue that Jamaicans willingly share ....‖ Id.
87
Gallimore, supra note 86.
Smith, Kosobucki
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the politicians even participate in a forum where
gays are present.88 He ends with this note: ―[A]s
clearly stated in the Bible…Christian principles
should always take precedence over democratic
principles—always.‖89
Many of these attitudes can be traced back
to the religious teachings of the British who invaded
and controlled the Island from the early 18th
century until 1962.90 Much of that time, slavery was
the predominate pattern.91 According to Suzanne
LaFont92 many Jamaicans accepted Christianity as a
moral guide, which was a much needed support
system when slavery existed.93 Obviously, slavery
was degrading to one‘s self worth.94 However, the
88
Id.
Id.
90
LaFont, supra note 30, at 29.
91
Id. at 30.
92
Professor, City University of New York (CUNY).
93
LaFont, supra note 30, at 41.
Many Afro-Jamaicans embraced Christianity, but did it on their own
terms....Slaves accepted the services of missionaries when it suited
them and rejected or avoided their services when it did not.
Christianity offered a higher moral ground, guidelines in an unstable
world and a psychological sanctuary from the degradation of slavery.
Id. at 40.
94
Id. at 41.
89
Smith, Kosobucki
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religious prohibitions were on non-reproductive
sexual activity.95 Thus, according to LaFont, slave
interpretations of Christian morality were not
against pre or extra marital sex, but rather focused
on any form of sex that did not have the potential of
reproduction.96
The role of power in silencing members of
the LGBTI community is compounded by the
religious attempts to stigmatize homosexuality as
pathological. In his analysis of the role of religion in
vilifying homosexuality, Michel Foucault offers an
insightful interpretation:
[A]round the middle of the sixteenth
century, there emerged, alongside the
ancient
techniques
of
the
confessional, a new series of
procedures developed within the
ecclesiastical institution for the
purpose of training and purifying
95
Id.
Id. ―It is not much of a stretch to imagine African slaves, with their
life affirming religious beliefs, accepting a Christian sexual ideology
that embraced life-giving reproductive sexual behavior while
condemning extra-reproductive activity as unnatural.‖ LaFont, supra
note 30, at 41.
96
Smith, Kosobucki
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ecclesiastical personnel. Detailed
techniques were elaborated for use in
seminaries
and
monasteries,
techniques of discursive rendition of
daily life, of self-examination,
confession, direction of conscience
and regulation of the relationship
director and directed. It was this
technology which it was sought to
inject into society as a whole, and it
is true that the move was directed
from the top downwards.97
Even more influential was the dominate
idea of respectability.98 As Professor Byrne Fone
observes, ―[a]s the seventeenth century grew to a
close, ‗sodomy,‘ a category invented by religious
prohibition and civil proscription had become
indistinguishable from the individual who practiced
it—the sodomite—to whom state, Church and
citizenry, responded with fear, hatred, contempt and
disgust.‖99
97
Michel Foucault, Power/Knowledge: Selected Interviews & Other
Writings 1972–1977 200 (1980).
98
Byrne Fone, Homophobia: A History (2000).
99
Id. at 255.
Smith, Kosobucki
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Jamaica views the attempt by the West
toward more tolerance for the gay community as
post-colonial imperialism:
They believe that they should have
the right to retain their sexual mores
as part of their culture. Their actions
are part of a global dialogue between
human rights and cultural rights.
Sexual rights are part of the today‘s
human rights, yet they are part of the
most contested arena of human
rights.
Which
should
take
precedence? Human rights or
cultural
rights?
And,
very
importantly, who decides what
constitutes human rights?100
IV. IMPACT OF NON-BRITISH RELIGIOUS
AND CULTURAL BELIEFS ON
JAMAICAN‘S ATTITUDES TOWARD
HOMOSEXUALITY
A. Original African Beliefs
100
Id. at 67.
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While some would like to trace all the
homophobia to the original African beliefs, this
cannot totally be substantiated. For example, the
Jamaican Maroons, many of whom were Akan,
prior to British colonization had beliefs in multiple
gods, including bi-sexual gods. Eva Meyerowitz
writes:
When the bi-sexual deity of the
cosmos Nyame Amowia, visible as
the moon, gave birth to the Sun god,
she gave him her kra, her eternal
soul or life-giving power; hence his
name, the Only Great Nyame
(Nyame; ko- only; pon- great)
generally
drawn
together
as
Nyankopon. The kra is also
envisaged as bi-sexual; its female
aspect is believed to be the substance
or body of the moon and sun, i.e.
fire, while its male aspect is the
spirit, the essence, the spiritual, or
that which is truly divine.101
101
Eva L. R. Meyerowitz, Concepts of the Soul among the Akan of
the Gold Coast, 21 Afr: J. Int‘l African Inst. 24, 24 (1951).
Smith, Kosobucki
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Meyerowitz demonstrates that ancestral
beliefs among the Akan included the notion of a bisexual deity.102 Furthermore, the contributions of
Akan practices directly influenced the Maroon
population among Jamaica‘s early inhabitants.103
Kenneth Bilby addresses the influence of Akan
culture through Jamaica‘s Maroon population. The
Akan peoples of West Africa, whose culture is
known to have contributed much to the Creole
cultures, was developed by both the Jamaican and
the Surinamese Maroons.104 Indeed, in the Jamaican
case, the Akan influence appears to have been
preponderant.105
102
See id. ―It is common in polytheistic mythologies to find
characters that can change gender, or have aspects of both male and
female genders at the same time. Sexual activity with both genders is
also common within such pantheons, and is compared to modern
bisexuality or pansexuality.‖ Randy P. Conner & David Hatfield
Sparks, Queering Creole Spiritual Traditions: Lesbian, Gay,
Bisexual, and Transgender Participation in African-Inspired
Traditions in the Americas (2004). See generally id.
103
Kenneth Bilby, Swearing by the Past, Swearing to the Future:
Sacred Oaths, Alliances, and Treaties among the Guianese and
Jamaican Maroons, 44 Ethnohist. 655, 671 (1997).
104
Id.
105
Id.
Smith, Kosobucki
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Since
the
predominant
influence
on
Jamaican culture came from the Akan, and since the
Akan, as noted by Eva Meyerowitz, held beliefs in a
bi-sexual deity, it would be fallacious to argue that
Jamaican culture, as such, has always been
homophobic. Since evidence demonstrates that prior
to the height of the Jamaican slave trade, i.e., before
1789, the Akan believed in a bi-sexual deity, and
after the height of the slave trade in 1803 Jamaicans
were indoctrinated by the colonizer‘s religious and
political systems, one can safely make the claim
that much of the current homophobia within
Jamaican culture is a direct result of British
colonization. However, there might be other
explanations.
There are those who trace much of the
homophobia
to
the
Restafari
and
dancehall
music.106 The Restafari movement originated in the
1930s as a response to the poverty which most
106
Krishna Rau, Rastafari Homophobia Is Biblical, XTRA! (Nov. 27,
2009)
http://www.xtra.ca/public/printStory.aspx?AFF_TYPE=1&STORY_I
D=4003.
Smith, Kosobucki
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LSD Journal
Jamaicans suffered.107 The beliefs came from
Ethiopia.108 Haile Selassie, who was the emperor of
Ethiopia, was believed to be the messiah and told
blacks that they were the true Israelites.109 The
basics of the religion were taken from the Old
Testament.110 Thus, such traditions as dreadlocks
and not cutting one‘s hair was taken from Leviticus
21:5: ―They shall not make baldness upon their
head, neither shall they shave off the corner of their
beard, nor make any cuttings in the flesh.‖111 In the
same way that dreadlocks became the norm, so did
the attitudes toward homosexuality mentioned in
Leviticus 18:22: ―Thou shalt not lie with mankind,
as with womankind: it is abomination.‖112 The
Rastafari interpreted that Old Testament wording as
God‘s hatred for queers.113
107
Id.
Id.
109
Id. ―This belief is based in part on Selassie's titles of King of
Kings, Lord of Lords and Conquering Lion of Judah—references
taken from Revelations.‖ Id.
110
Rau, supra note 103.
111
Id.
112
Id.
113
Id.
108
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B. Dancehall Homophobia
Arguably the most vehement opposition to
homosexuality within Jamaican culture arises from
dancehall music. The brutality of the music is
typified in Buju Banton‘s ―Boom Bye Bye‖ where
he cries:
Boom bye bye inna batty bwoy head
Rude bwoy no promote no nasty man
Dem haffi dead
Send fi di matic an di Uzi instead
Shoot dem no come if we shot dem
Guy come near we
Then his skin must peel
Burn him up bad like an old tire wheel.
[Translation]
Shoot a queer in the head
Rude boys don't promote queers
They have to die
Send for the automatic gun and the Uzi
instead
Shoot them, don't help them if we shoot
them
Smith, Kosobucki
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If a guy comes near us
Pour acid over him
Burn him like a tire wheel.114
The explicit level of violence directed
against homosexuals within Jamaican dancehall
music is inexcusable. Unfortunately, other Jamaican
artists have spread similar messages of hate and
intolerance. Gary Younge, in a 2004 article for The
Guardian, comments on the rising levels of
brutality within Jamaican dancehall music:115
Some of the country's most popular
musicians have in effect provided a
soundtrack for these attacks. Along
with Buju Banton, performers such
as Capleton and Sizzla have been
114
Jason Bennetto, Rap Stars Targeted by Police for Lyrics Inciting
Gay Hatred, The Independent, Aug. 17, 2004,
http://www.independent.co.uk/news/uk/crime/rap-stars-targeted-bypolice-for-lyrics-inciting-gay-hatred-756221.html. ―Banton‘s lyrics
are hardly unique among reggae artists today. Another popular artist,
Elephant Man declares in one song, ‗When you hear a lesbian getting
raped/ It's not our fault ... Two women in bed/ That's two Sodomites
who should be dead.‘‖ Padgett, supra note 11.
115
Gary Younge, Troubled Island, The Guardian, Apr. 27, 2006,
http://www.guardian.co.uk/world/2006/apr/27/gayrights.comment. In
Jamaica, where politicians are openly homophobic and song lyrics
incite violence against gay people, coming out can be fatal. Id.
Smith, Kosobucki
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LSD Journal
known to devote whole concerts to
lambasting gay men. At one concert
in January 2004, a dancehall singer
told a crowd of 30,000 in St
Elizabeth: ―Kill dem battybwoys
haffi dead, gun shots pon dem...who
want to see dem dead put up his
hand‖ (Kill them, the queers have to
die, gun shots in their head...put up
your hand if you want to see them
dead).116
This hyperviolent and macabre fascination
with torturing and murdering homosexuals has led
―gay groups [to dub dancehall as] ‗murder music‘
because anti-gay lyrics often suggested killing
homosexuals. [These groups have] led a vigorous
campaign against its biggest stars.‖117
Unfortunately, the violence espoused within the
music has justified the dehumanization, torture and
murder of many homosexuals, primarily
homosexual men within Jamaica.118 On September
116
Id.
Zadie Neufville, Broadcast Ban Forces Cleanup of ―Murder
Music‖, IPSNEWS.NET, http://ipsnews.net/news.asp?idnews=52826.
118
See id. Many Jamaicans believe a ―gay conspiracy‖ exists against
these artists. See, e.g., Editorial, Boom Boom Bye?, Jamica Observer,
117
Smith, Kosobucki
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9, 2009, an honorary British consul, John Terry,
was brutally murdered in his Mount Carey home.119
The Guardian Unlimited reports:
The British consul murdered in
Jamaica may have been the victim of
a homophobic attack. A note found
with John Terry's body referred to
him as a "batty man"—slang for a
homosexual—according to reports.
The news website Go Jamaica has
reported that St. James police suspect
that Terry knew his killer. The
authorities have not revealed any
possible motives and no arrests have
been made. It was reported today
Feb. 24, 2011. Consequently, it isn‘t uncommon for artists‘ legal
woes to be blamed on the gay community. See id. On February 22,
2011, Buju Banton was found guilty of three cocaine-related charges.
Daraine Luton, Buju Banton Guilty on Three Counts, Jamaica
Gleaner, Feb. 22, 2011. Many Jamaicans blamed gays for ―setting
Buju up.‖ E-mail from Maurice Tomlinson, Legal Advisor,
Marginalized Groups, AIDS-Free World, to author (Feb. 22, 2011,
16:15 EST) (on file with author). The sense that Buju's conviction is
unfair and in some way entrapment because its linked to a gay
conspiracy will make [gays‘] lives harder as [they] seek to win public
support for LGBTI rights. Id. The situation is exacerbated because
―Buju supports an entire industry in Jamaica and many persons
depend on him for financial assistance. Id.
119
Adam Gabbatt & James Meikle, Gay Hate Crime Feared in
Consul to Jamaica‘s Death, The Guardian, Sept. 11, 2009,
http://www.guardian.co.uk/world/2009/sep/11/consul-jamaica-gayhate-terry.
Smith, Kosobucki
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LSD Journal
that the handwritten note found with
Terry's
body
contained
a
homophobic message that called him
a ―batty man,‖ warned that ―[t]his is
what will happen to ALL gays‖ and
was signed ―Gay-Man.‖120
The threat that ―this is what will happen to
all gays‖ living in Jamaica cannot be taken lightly.
Mike Melia of the Associated Press addressed the
growing murder rate within Jamaica. ―Police in
Jamaica, the Caribbean nation with the highest
murder rate, said the island had about 1,660
homicides in 2009, close to the record of 1,674 set
in 2005.‖121 The constant barrage of murder and
violence glorified in this new generation of ―murder
music‖ is destroying the social and moral fabric of
Jamaican culture. Such extreme levels of
intolerance and hate will only increase the murder
rates.
120
Id.
Drug Violence Escalates Caribbean Murder Rate—Islands‘
Courts Overwhelmed by Rising Caseloads, Sun-Sentinel, 2010, at
19A.
121
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V. THE CURRENT STATE OF JAMAICAN LAW:
THE OFFENSES AGAINST THE PERSON ACT
Law does not occur in a vacuum, but it is a
result of the social, political, and economic
activities occurring at any place and time. Likewise,
enforcement of laws is driven by these same factors.
As discussed above, homophobia in Jamaica
derives from deep-rooted cultural beliefs and
values. Consistent with beliefs persisting from its
colonial past, current Jamaican law is dominated by
the prohibition of same-sex conduct between
males.122 Men that deviate from these standards are
not
only
marginalized,
but
criminalized.123
Suspected homosexual activity short of intercourse
can also be prosecuted, as an ―outrage on
decency.‖124 Sections seventy-six through seventy122
See Offences Against the Person Act §§ 76–79, L.N. 111/2005
available at
http://www.moj.gov.jm/laws/statutes/Offences%20Against%C20the
%C20Person% 20Act.pdf [hereinafter Offences Against the Person
Act] (criminalizing anal intercourse, attempted anal intercourse, and
procuring or attempting to procure an act of indecency between two
or more males).
123
See id.
124
See Offences Against the Person Act, § 79.
Smith, Kosobucki
Vol. 1, 2011 43
LSD Journal
nine of The Offences Against the Person Act,
passed
in
1864,
codify
these
―offenses,‖125
collectively known as the ―buggery laws.‖126
Jamaica‘s buggery laws are presently enforced, and
used as a tool of marginalization. Gay men, bisexual
men, and men perceived to be gay are ―routinely
threatened with arrest, arrested, detained, and [at
least] sometimes prosecuted because of their actual
or
perceived
homosexuality.‖127
Sustained
antidiscrimination efforts in Jamaica and elsewhere
in the Caribbean may offer glimmers of hope of
eroding the island‘s longstanding legal and cultural
practices, and fostering an environment of greater
tolerance, and ultimately, equality.
125
See id. §§ 76–79.
Challenging Homophobia in Jamaica, AIDSFREEWORLD.ORG
(Oct. 20 2010), http://www.aidsfreeworld.org/Our-Issues/LegalWork/Challenging-Homophobia-in-Jamaica.aspx.
127
Human Rights Watch Report at 21.
126
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LSD Journal
A. The Buggery Laws: Buggery, Attempted
Buggery, and Outrages on Decency
1. Buggery and Attempted Buggery
Consensual sex between adult men under the
Act is criminalized as the ―abominable act of
buggery.‖128 Buggery encompasses bestiality and all
acts of anal intercourse.129 It provides that
―[w]hosoever shall be convicted of the abominable
crime of buggery [anal intercourse] committed
either with mankind or with any animal, shall be
liable to be imprisoned and kept to hard labour for a
term not exceeding ten years.‖130 The following
128
Id. § 76 (―Whosoever shall be convicted of the abominable crime
of buggery, committed either with mankind or with an animal, shall
be liable to be imprisoned and kept to hard labour for a term not
exceeding ten years.‖); Camille A. Nelson, Lyrical Assault:
Dancehall Versus the Cultural Imperialism of the North-West, 17 S.
Cal. Interdisc. L.J. 231, 258 (2008). Same-sex acts between women,
however, are presumably legal; the current law does not address
sexual conduct between females. See Offences Against the Person
Act, §§ 76–79.
129
Offences Against the Person Act, § 76.
130
Id. The result of sex between men being listed under ―unnatural
offenses‖ is that heterosexuality is fixed by law ―as the natural
measure of appropriate sexuality.‖ Nelson, supra note 127, at 258.
The ―very nomenclature of the law‖ pronounces sex between men as
―freakish and perverse‖ by conflating sex between men with sex with
Smith, Kosobucki
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LSD Journal
section prohibits attempted sodomy.131 Conviction
of attempt carries a sentence of imprisonment up to
seven years with the possibility of hard labor.132
2. Outrages on Decency
Section 79, ―Outrages on Decency‖ is the
last section of the Act to penalize homosexual
animals. Id.; see Offences Against the Person Act, § 76. U.S. Courts
have recognized Jamaican law and practices as persecution and have
granted asylum to homosexual Jamaican men. See, e.g., Bromfield v.
Mukasey, 543 F.3d 1071, 1077 (9th Cir. 2008) (discussing The
Offences Against the Person Act and characterizing it as persecution
of homosexuals in Jamaica). In fact, twenty-eight gay Jamaicans
were granted asylum in the United States in 2010. 28 Gay Jamaicans
Granted Asylum in U.S. Last Year, Jamaica Observer, Feb. 12, 2011.
―In many cases, the [Caribbean] clients who turn ... for help are
literally running for their lives. They have been mistreated and beaten
by authorities in their home countries, disowned by their families and
ostracized by society.‖ Id.
131
Section 77 of the Act provides:
Whoever shall attempt to commit the said abominable crime, or shall
be guilty of any assault with intent to commit the same, or of any
indecent assault upon any male person, shall be guilty of a
misdemaeanor, and being convicted thereof, shall be liable to be
imprisoned for a term not exceeding seven years, with or without
hard labour.
Offenses Against the Persons Act, § 77.
132
Id. Section 78 of the Act defines ―carnal knowledge‖ (intercourse).
Id. § 78. ―It shall not be necessary to prove the actual emission of
seed in order to constitute a carnal knowledge, but the carnal
knowledge shall be deemed complete upon penetration only.‖ Id.
Smith, Kosobucki
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conduct between males.133 ―Gross indecency‖ is
generally interpreted as referring to any kind of
physical
intimacy
134
intercourse.
between
men
short
of
This section has been described as
the ―catchall‖ provision because of the ―expansive
basis‖ upon which to criminalize sex between
men.135 It reads:
Any male person who, in public or
private, commits, or is a party to the
commission of, or procures or
attempts to procure the commission
by any male person of, any act of
gross indecency with another male
person, shall be guilty of a
misdemeanour, and being convicted
thereof shall be liable at the
discretion of the court to be
imprisoned for a term of not
exceeding two years, with or without
hard labour.136
133
See id. § 79.
Nelson, supra note 127, at 259.
135
Id.
136
Offenses Against the Person Act, § 79 (emphasis added).
134
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B. Enforcement and Prosecution of
the Buggery Laws
The Act‘s broad language allows authorities
wide latitude in the policing of male sexuality.137 In
addition to the buggery laws, section 80 empowers
police officers to make a warrantless arrest any
person ―loitering in any highway, yard, or other
place‖ between seven o‘clock in the evening and six
o‘clock the following morning whom the officer has
―good cause to suspect of having committed, or
being about to commit any felony‖ defined in the
Act.138 Section 80, in conjunction with the buggery
laws, results in arrests and prosecutions with no
more than a hunch (or fabrication) of suspected
homosexual contact.
By most accounts, buggery is the most
frequent charge levied by the police.139 According
137
See id. § 79.
Offences Against the Person Act, § 80.
139
Human Rights Watch Report at 22. See also Sodomy Laws:
Jamaica, GLAPN.ORG (Apr. 21, 2007),
http://www.glapn.org/sodomylaws/world/jamaica/jamaica.htm
(―Most prosecutions involve consenting adult men suspected of
indulging in anal sex.‖).
138
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to Human Rights Watch, although it is impossible
to say how often Jamaica‘s sodomy laws are
actually enforced, there are accounts of their
frequent active use.140 Conversely, however, toplevel law enforcement officials claim the laws are
seldom enforced.141
140
Human Rights Watch Report at 23. A Kingston attorney who has
represented men charged under these statutes told Human Rights
Watch:
I always seem to have a case of a practicing gay man who is in court
on account of his homosexuality. It‘s either that he and another have
been busted and are jointly charged for [consensual] buggery, he‘s
been charged in circumstances where someone has alleged forcible or
unwarranted homosexual advances against him. [However, there is
often] a lack of physical or credible evidence.
Id. ―In June 2004, Human Rights Watch requested police statistics on
arrests, convictions and charges imposed under laws proscribing
sodomy and prostitution, but [to date] has not received them.‖ Id.
n.55.
141
Human Rights Watch Report at 23.
Clarence Taylor, assistant commissioner of police in charge of
administration, said that sodomy cases among adults were rare. A St.
Ann's Bay constable told Human Rights Watch, ―We occasionally
arrest homosexuals. If they're caught in the act, we charge them with
buggery.‖ A high-level police officer at a Kingston divisional police
headquarters told Human Rights Watch in June 2004 that it had been
―many moons since we have had an arrest for solicitation, buggery,
or gross indecency.‖ A high-level police officer at a second Kingston
divisional police headquarters said that he could not recall a case of
buggery, and that the last one may have been three or four years
before.
Id. Jamaican police also fail to provide protection to the gay
community from abuse and violence at the hands of criminals. One
police authority has characterized violence against homosexuals as
wholly ―internal.‖ Id.
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Regardless
of
enforcement
frequency,
Jamaicans realize that the damage is in the ―terror
of the charge itself.‖142 Arrest for buggery or gross
indecency has very palpable consequences.143 The
press prints the names of men charged with gross
indecency and ―consensual‖ buggery, shaming them
and putting them at risk of serious injury.144 The
buggery laws provide a means to intimidate, arrest,
and in some instances, imprison individuals,
perpetuating social prejudices.145
C. Shifting Attitudes and Policy:
Will Jamaica Follow?
In the last half-century, especially in the
West, there has been an obvious trend towards the
decriminalization
community.
146
of
More
the
and
gay
and
more,
142
lesbian
Caribbean
Id. at 23. ―Oftentimes, the defendant pleads guilty to the lesser
offence of gross indecency, to abbreviate the embarrassment.‖ Id.
143
Id.
144
Id.
145
Id.
146
Suzanne Michelle Sable, A Prohibition on Antisodomy Laws
Through Customary International Law, 19 L. & SEX. 95, 95 (2010).
Smith, Kosobucki
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parliaments have seen calls from opposition
parliamentarians and citizens to begin recognition
that LGBTI people are part of the Caribbean.147
As to the indiscriminate enforcement practices and unbridled
discretion of Jamaican police, see also, e.g., Maurice Tomlinson,
Letter to the Editor, Battle Royal, Jamaica Observer, Feb. 24, 2011:
[3 nights ago,] four police pick-up trucks and a van normally used to
transport prisoners swooped down on the only gay club along
Montego Bay‘s tourist Hip-Strip. About 20 heavily armed officers
jumped from the vehicles, kicked in doors, aggressively accosted
patrons, indiscriminately beat and pistol-whipped them, and chased
everyone from the venue.
147
Trinidad and Tobago is replete with recent developments
evidencing a growing foothold of gay rights and the success of
activists. See, e.g., Aabida Allaham, Gays Ask Gov‘t for Equal
Rights, Trinidad Express, Feb. 16 2010 (―Gays lesbians, bisexuals,
and transgender people in Trinidad and Tobago are calling on the
[g]overnment to decriminalize homosexuality...the community...is
tired of being treated like second-class citizens.‖); see also Sean
Douglas, Gays May Get Privacy Protection, Newsday, (Feb. 15,
2009). ―While the laws of Trinidad and Tobago ban homosexuality,
[its] House of Representatives on Friday debated a bill that would to
some extent protect the privacy of gays, among others.‖ Id. ―The bill
might be viewed as a back-door move to give gays some legal
protection, although this point was not exposed by a single MP
present.‖ Id. The bill, ―with...few exceptions, prevent[s] the
disclosure of sensitive personal information. This information is
defined as ‗racial or ethnic origins, political opinions, religious
belief...,physical or mental health or condition, sexual orientation or
sexual life, or criminal or financial record.‘‖ Id. (emphasis added).
The nation‘s Gender Affairs Minister has even called for debates on
same-sex relationships. See King Wants Debate on Same-Sex
Marriages, Trinidad Guardian, Feb. 16, 2011. See also, e.g., Aabida
Allaham, It‘s About Homosexuals and the Law, Not Religion,
Trinidad Express, Feb. 21, 2011. In Guyana, Alliance for Change
party member of Parliament Raphael Trotman called for an end to
confrontational governance and an end to recognizing differences,
even in sexual orientation. Id. Said the MP:
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LSD Journal
While Jamaica‘s government has recognized the
negative effects systemic homophobia and at times
has expressed a commitment to develop legislation
to protect LGBTI human rights, it has yet to pass
buggery
repeal
or
implement
ameliorative
legislation.148 Jamaica‘s current prime minister has
reaffirmed his commitment to keeping the buggery
laws on the books.149 In fact, Jamaica reaffirmed its
We desperately need a president and a government who demonstrate
the capacity, the ability and willingness to bridge the ethnic and
political divide; to confront and address legacy issues that spurn hate
and revenge, and to forge a culture of accountability and
acknowledgement that create the atmosphere for forgiveness and
reconciliation, to put Guyana and all people first and not one‘s ego,
blind ambition, ethnicity, gender, religious belief, age, and even
sexual orientation.
Id. (emphasis added). In Belize, a first of its kind lawsuit has been
brought against the Attorney General‘s office involving sexual
orientation. The United Belize Advocacy Movement (UNIBAM) has
filed a constitutional case, challenging section fifty-three of the
Criminal Code [which punishes anal intercourse with imprisonment
up to ten years]. See Caleb Orozco and UNIBAM Take Gay Rights to
the Courts, Belize News, Feb. 4, 2011.
148
See, e.g., Ministry of Health, Jamaica HIV/AIDS/STI National
Strategic Plan 2002 –2006, 10–12 (2002). Specifically, the country
has recognized the role that homophobia plays in driving the
country‘s HIV/AIDS epidemic, discussed supra. See also id.
149
Said Prime Minister Golding to Parliament: ―We are not going to
yield to the pressure whether that pressure comes from individual
organizations, individuals,...foreign governments or groups of
countries, to liberalize the laws as it relates to buggery.‖ Daraine
Luton, Buggery Laws Firm—PM Says Life or 15 Years for Some Sex
Offense Breaches, Jamaica Gleaner, Mar. 4, 2009.
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buggery laws in the 2009 Sexual Offences Act,
maintaining the ban against private consensual adult
male sex.150
Even so, opinion seems to be shifting toward
reform. The island‘s largest newspaper, The
Jamaica
Gleaner,
changed
course
in
its
editorial pages and went on the record in 2007
to oppose the buggery laws, stating ―if adult and
consenting males choose to engage in homosexual
sex, that ought to be their business—no matter what
the rest of us believe about their lifestyle or
behaviour.‖151 In response to a report that a move
by the Jamaican Labour Party to decriminalize
homosexuality would result in violence, the
mainstream Jamaica Observer responded:
For Jamaicans, caught up in our
own little world, the global pro-gay
150
Perhaps ironically, Jamaica‘s government describes the 2009
Sexual Offences Act as ―modernizing the law in this area as it relates
to sexual offences.‖ Human Rights, Ministry of Justice (last visited
Feb. 24, 2011).
151
Editorial, The State and the Rule of Law, Jamaica Gleaner, Feb.
20, 2007.
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trend
has
developed
with
bewildering speed, sneaking up on
us like a thief in the night.
Like it or not, our political and other
leaders must somehow start to
nudge our people towards the day
when an accommodation is made
with the homosexual community.152
CONCLUSION
Home grown is best.153 If put into
perspective, think what Americans would do if a
NGO from Iran started advocating that all women
wear burkas and aimed their attacks at the United
States. Americans would consider such observations
as advocacy against the deeply held views, both
culturally and religiously, and that such a
suggestion was a ―foreign invasion‖ without merit.
152
Jamaica Observer, July 2007.
However, this will be no easy feat, nor the process fast. ―Our
politicans have already made it clear that they will not be sacrificing
any political capital on our issue. We have to first make the society
ready for gay rights before they (politicians) will budge on the issue
of decriminalization of buggery.‖ Tomlinson, supra note 118.
153
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Many of the Caribbean Islands consider Western
advocacy concerning freedoms for the LGBTI
community landing in the same murky waters. One
of the best ways to get change is for it to come from
the inside as it did in the United States. Without
Stonewall, the LGBTI community in the U.S. would
never have happened, and the movement still has a
lot to accomplish. Slowly but surely the same will
happen in the Caribbean. For instance, on April 23,
2010, there was an estimated twenty-five people
who gathered in the streets around Emancipation
Park in Kingston, Jamaica wearing rainbow
colors.154 Same-sex couples kissed in public.155 Of
course, nobody who participated wants their names
revealed because of potential life-threatening
backlash, but it still took place.156 Bravery is the
name of the game. Western support of those who
are willing to take risks is important. Imposing our
cultural values on the country as a whole is going to
154
Jarrett Terrill, First Ever Jamaica Gay Pride—2010, South Florida
Gay News, May 3, 2010, at 8.
155
Id.
156
Id.
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be met with resistance and perhaps make it even
more difficult for a ―revolution‖ to take place.
Smith, Kosobucki