Gender & Sexuality - Tuesday, December 1, 2009 17:35
On World AIDS Day 2009, sexual minorities are still criminals in the CaribbeanBy Antillean, Advocacy Desk
December 1, 2009 marks the 21st observance of World AIDS Day, under the theme Universal Access and Human Rights. In our observance of World AIDS Day, our call to action is to repeal laws criminalising homosexuals in the Caribbean.
When World AIDS Day was observed today in the Caribbean, ceremonial fanfare belied many governments’ fervent denial of basic human rights to sexual minorities in the lesbian, gay, bisexual and transgender communities.
While issuing official government communiqués on fighting the disease in the region – which is second only to Sub-Saharan Africa in new HIV/AIDS infections – Caribbean lawmakers, through their silence, stood steadfastly behind laws which criminalise homosexuals, and tacitly endorsed the discrimination and stigma that work in tandem to thwart any effort to stem the disease’s spread in the LGBT community.
Today, on World AIDS Day 2009, a gay man in Barbados could still be sentenced to life in prison¹ if found guilty of homosexual acts. In Jamaica, he could be sentenced to ten years hard labour2, considerably less than the twenty five year prison sentence prescribed in Trinidad & Tobago3. Indeed, all independent Caribbean states with the exception of the Bahamas and Cuba have criminalized homosexuality to some degree, often with penalties harsher than those which exist in Ghana4, Ethiopia5 and Zimbabwe 6.
Religion, political pandering and homophobia continues to supersede human rights in the region – HIV/AIDS control notwithstanding.
Laws against homosexuality help no one
Laws against homosexuality militate against HIV/AIDS control:
A 2009 UNAIDS report found that heterosexual sex is the main driver of HIV transmission in the region, with emerging evidence indicating that substantial transmission occurs among men who have sex with men (MSM), in spite of the law. However while the law does not deter sex between men, Stephen Lewis, Director of AIDS-Free World summarizes: men who have sex with men are often disparaged, abused and discriminated against, and in order to seize legitimacy have sex with women, thus spreading the virus further into the general population.
Laws against homosexuality are a breach of human rights:
Individual rights, freedoms and protection from discrimination are enshrined to varying degrees in most Caribbean constitutions, yet are incompatible with laws criminalising homosexual conduct. In addition, the International Covenant on Civil and Political Rights to which most Caribbean states (excluding Antigua & Barbuda, St. Kitts & Nevis and St. Lucia) have either signed to or ratified has successfully been used to repeal laws against homosexuality (see Toonen vs Australia), citing violations of Article 17 (the right to privacy) and Article 26 (equality before the law).
At the very least, laws against homosexual conduct set a precedent under which sexual relations between consenting adults – whether homosexual or heterosexual – fall under the jurisdiction of the state.
Laws against homosexuality give legitimacy to hate crimes and discrimination:
While decriminalizing homosexuality will not in itself end discrimination, the process cannot begin with the laws against homosexuality still in place. Crimes against gays are tacitly legitimised by laws which brand gays as criminals, as well as the religious and irrational justifications used to support the laws’ continued existence. Legislatively protecting gays from hate crimes – another key step in ending discrimination – is also at odds with anti-gay legislation. In addition, legistated discrimination against gays further entrenches the downlow culture within the gay community – another key driver in the spread of HIV/AIDS.
Lack of enforcement is no guarantee that laws will never be enforced:
While laws against homosexuals are infrequently enforced, it is within the state’s right to prosecute persons known to be engaging in homosexual conduct. With the hefty penalty stipulated by law, gays still run the theoretical risk of being victimized for their sexual behaviour and being imprisoned on this basis alone.
Call to action
On this World AIDS Day, and throughout AIDS Awareness Month, send a message to Caribbean lawmakers that criminalising homosexuality goes against HIV/AIDS control and is incompatible with human rights.
The criminalisation of homosexuality derives from various laws and differ from state to state within the region. In Barbados, buggery is outlawed, but the stipulation is applied arbitrarily to homosexualsº. Similarly, in Trinidad ‘sodomy’ is outlawed. Jamaican law speaks specifically to criminalising men who have sex with men. For simplicity, references within this article to ‘criminalising homosexuality’ refer to the criminalisation of the gay sex act between men and/or women, on the basis that the act of consummating a homosexual relationship is illegal under interpretation of the law. Note however that some Caribbean countries do not criminalise female to female sex.
Image adapted from the World AIDS Campaign, a nonprofit established to strengthen advocacy and campaign activities targeting governments to deliver on their promises and commitments.
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