Homophobia in the Caribbean: Jamaica
Transcription
Homophobia in the Caribbean: Jamaica
Vol. 1, 2011 1 LSD Journal 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). Smith, Kosobucki Vol. 1, 2011 2 LSD Journal 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 Vol. 1, 2011 3 LSD Journal 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 Vol. 1, 2011 4 LSD Journal 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 Smith, Kosobucki Vol. 1, 2011 5 LSD Journal 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 Smith, Kosobucki Vol. 1, 2011 6 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 7 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 8 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 9 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 10 LSD Journal 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 Vol. 1, 2011 11 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 12 LSD Journal 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 Smith, Kosobucki Vol. 1, 2011 13 LSD Journal 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 Smith, Kosobucki Vol. 1, 2011 14 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 15 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 16 LSD Journal 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 Smith, Kosobucki Vol. 1, 2011 17 LSD Journal 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). Smith, Kosobucki Vol. 1, 2011 18 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 19 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 20 LSD Journal 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 Vol. 1, 2011 21 LSD Journal 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 Vol. 1, 2011 22 LSD Journal 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 Vol. 1, 2011 23 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 24 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 25 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 26 LSD Journal 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 Vol. 1, 2011 27 LSD Journal 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 Vol. 1, 2011 28 LSD Journal 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 Vol. 1, 2011 29 LSD Journal 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 Vol. 1, 2011 30 LSD Journal 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 Vol. 1, 2011 31 LSD Journal 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 Vol. 1, 2011 32 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 33 LSD Journal 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 Vol. 1, 2011 34 LSD Journal 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 Vol. 1, 2011 35 LSD Journal 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 Vol. 1, 2011 36 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 Smith, Kosobucki Vol. 1, 2011 37 LSD Journal 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 Vol. 1, 2011 38 LSD Journal 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 Vol. 1, 2011 39 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 Vol. 1, 2011 40 LSD Journal 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 Vol. 1, 2011 41 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 Smith, Kosobucki Vol. 1, 2011 42 LSD Journal 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 Smith, Kosobucki Vol. 1, 2011 44 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 Vol. 1, 2011 45 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 Vol. 1, 2011 46 LSD Journal 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 Smith, Kosobucki Vol. 1, 2011 47 LSD Journal 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 Smith, Kosobucki Vol. 1, 2011 48 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 49 LSD Journal 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 Vol. 1, 2011 50 LSD Journal 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: Smith, Kosobucki Vol. 1, 2011 51 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. Smith, Kosobucki Vol. 1, 2011 52 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 53 LSD Journal 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 Smith, Kosobucki Vol. 1, 2011 54 LSD Journal 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. Smith, Kosobucki Vol. 1, 2011 55 LSD Journal be met with resistance and perhaps make it even more difficult for a ―revolution‖ to take place. Smith, Kosobucki