“Truly a David and Go­liath sit­u­a­tion”

The Star (St. Lucia) - - REGIONAL -

The Jamaican Supreme Court on July 6 handed down its rul­ing on ap­pli­ca­tions by nine reli­gious groups and the Pub­lic De­fender to be in­ter­ested par­ties in a chal­lenge by Jamaican lawyer Mau­rice Tom­lin­son to the coun­try’s anti-sodomy law. All the groups ex­cept the Pub­lic De­fender were al­lowed in the case with full rights of par­tic­i­pa­tion.

“This is truly a David and Go­liath sit­u­a­tion, re­quir­ing me to re­spond to not only the gov­ern­ment’s, but also the reli­gious groups’ ar­gu­ments,” says Mr. Tom­lin­son. The legal chal­lenge, which is sup­ported by the Cana­dian HIV/AIDS Legal Net­work and AIDS-Free World, ar­gues that Ja­maica’s anti-sodomy law vi­o­lates the con­sti­tu­tional rights of its peo­ple.

The reli­gious groups al­lege that they must par­tic­i­pate in the case to de­fend the 1864 Bri­tish colo­nially im­posed an­ti­sodomy law that crim­i­nal­izes all forms of in­ti­macy be­tween con­sent­ing adult males, even in pri­vate, be­cause the statute pro­tects their rights un­der the 2011 Char­ter of Fun­da­men­tal Rights and Free­doms. These rights they claim in­clude free­dom of re­li­gion, equal­ity be­fore the law, the right to a healthy en­vi­ron­ment, and the right to pri­vacy. They also claim that gay men must be banned from hav­ing sex be­cause that will in­evitably lead to the ex­ploita­tion of chil­dren.

“Dur­ing the hear­ing of the ap­pli­ca­tions, the court stated that some of the churches’ al­le­ga­tions seem far-fetched. Nev­er­the­less, the court found that the opin­ion of the ma­jor­ity of Ja­maicans — as re­flected by the reli­gious groups — was im­por­tant in de­cid­ing what two con­sent­ing adults do in the pri­vacy of their bed­rooms,” says Mr. Tom­lin­son, as­sert­ing that the law vi­o­lates his rights to pri­vacy and non- dis­crim­i­na­tion.

There are other se­ri­ous con­cerns with the anti-sodomy law. UNAIDS and other groups in­volved in the na­tional HIV re­sponse have iden­ti­fied the law as con­tribut­ing to the rea­son Ja­maica has the high­est HIV preva­lence rate among men who have sex with men (MSM) in the west­ern hemi­sphere, if not the world (33%). MSM are driven un­der­ground and away from ef­fec­tive HIV preven­tion, treat­ment, care and sup­port in­ter­ven­tions.

The Pub­lic De­fender has in­di­cated that she will seek leave to ap­peal the court’s rul­ing and the mat­ter will likely be sus­pended un­til that ap­peal is heard. The full hear­ing is not ex­pected to take place be­fore 2017.

- aids.law.ca

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