One is tempted to feel sorry for Jamaica’s Health Minister, the Honourable Rudyard Spencer. There he is, trying his best to do his job, and, among other urgent health matters, reduce the incidence of HIV/AIDS in his nation. Unfortunately, on his own account, this is proving to be next to impossible lest Jamaicans change their cultural attitudes to – you guessed it – sex. The Jamaican Ministry of Health website quotes him with these eminently sensible concerns about specific attitudes: ‘These include a widely held belief that sex with a virgin can cure HIV/AIDS, the high level of sexual relations between older men and young girls and a persistently hostile anti-gay environment which all contribute to the stigmatization and discrimination of infected and affected persons. A strong religious culture also inhibits open discussion on matters of sexuality. … We to [sic!] need begin the process of unlearning those beliefs that endanger the health lives of others and rethinking the tendency to be obscene and degrading in rejecting values that conflict with our own.”[1]
A bit of background on HIV/AIDS in Jamaica: 2008 study commissioned by the Ministry of Health concluded that about 31.8% of men who have sex with other men (MSM) are HIV infected in the island state.[2] There is a strong correlation between men being HIV infected and them belonging to lower socioeconomic groups, and them having been victims of antigay violence. Thankfully the number of AIDS deaths per year is decreasing because the country has begun the rollout of antiretroviral medicines.
The Jamaican Health Minister and others tasked with improving public health have their work cut out for them. The country has the second-highest HIV-prevalence rate among MSM in the world, right after another notorious violator of the human rights of gay people, Kenya. Homosexual men in Jamaica rarely ever live in monogamous relationships because of the security risks involved in living with a member of the same sex over longer periods in the same household. This is partly a result of colonial legislation prohibiting same sexual activities among men. I decided to actually read-up on the relevant legislation. The flowery prose under the heading ‘Unnatural Offences’ is sufficiently antiquated that I should like to share it with you:
76. Whosoever shall be convicted of the abominable crime of buggery, 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.
77. Whosoever 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 misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.
Up to 10 years of labour camp for a mature-age man who has voluntarily sex with another consenting adult male is a fairly draconian penalty for a self-regarding act. One justification for this law is hidden under that well-known Christian natural law moniker of ‘unnatural’. Unfortunately, for Jamaican law makers, there is no such a thing as unnatural conduct. If something is physically possible it is very much within the laws of nature, and therefore by necessity it is natural. Normatively nothing follows from this. The phraseology of the ‘unnatural’ explains and justifies nothing. Many natural things are not desirable, natural conduct can be unethical, even criminal. However, as is well known to legal philosophers, not all unethical behaviours ought to be illegal.[3] Declaring homosexual conduct unnatural, as this law does, is arguably unintelligible and it begs the question of why the law exists to begin with.
The Jamaican law is not making a case for why sexual conduct between consenting adults is unethical, and if it is unethical, why it should be legislated against. For good measure ‘abominable’ has been added to this ‘crime’. This does not add anything either by way of justification. Merriam-Webster’s Dictionary enlightens us that the 14th century originated word ‘abominable’ means that something is variously disagreeable or unpleasant or worthy of causing disgust or hatred. Finding something disagreeable or unpleasant is not a good reason to make it illegal, and frankly, whether I am disgusted by something you do is not a good yard stick either by which to determine whether an act ought to be criminal. Well, and what about that hatred criterion? No doubt plenty of Jamaicans hate gay people, but how does that provide a justification in terms of outlawing same sex sexual conduct among consenting adults? One does not have to be an old-fashioned liberal in the tradition of John Stuart Mill to realize that the criminal law has no right to interfere with the self-regarding actions of consenting adults.
Jamaica today finds itself in a difficult situation. Sectarian religious mores has been enshrined in law by its former colonial master, and has since been duly maintained as the gospel by generations of Jamaican politicians. Indeed, to give Jamaican legislators credit where credit is due, they have managed to uphold unreasonable religious dictates decades after the British have discarded them. There is little by way of actual enforcement in current-day, but as is well-known, legal norms are capable of creating as well as reinforcing extra-legal norms.
The official Jamaican government report on HIV/AIDS to the United Nations General Assembly (2010) acknowledges the problems this legislation is causing: ‘The political framework towards HIV has not changed. With outdated laws that present obstacles for adolescents, SW, MSM and prison inmates, prevention and treatment efforts to these populations are not able to be fully maximized. The existing political framework has also been implicated in contributing to the stigma and discrimination faced by MSM. Several efforts have been made in this area however, through the review of laws that stand as obstacles to prevention, but to date no major achievements are noted in this aspect of political support.’[4]
The US based human rights organization Human Rights Watchhas published a report a few years ago highlighting the pervasive nature of oftentimes violent homophobia in Jamaica.[5] The price MSM are paying in Jamaica for this situation is very significant indeed, as can be demonstrated by the extraordinarily high prevalence of HIV/AIDS among this group of Jamaicans. Research has shown that gay Jamaicans are reluctant to present with health problems that could disclose their sexual orientation to health care providers out of fear for reprisals by health care professionals and others. It goes without saying that such health care professionals acting in such a manner would be violating international codes of health care professional conduct such as the World Medical Association’s Declaration of Geneva, requiring, as it does, that doctors ‘WILL NOT PERMIT [sic!] considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient.’[6] However, many Jamaican MSM patients reluctance to consult health care professionals is indicative of the climate in the country. It might be coincidental, but I do wonder why the Medical Association of Jamaica, unlike so many other national medical association, is seemingly not a member association of the World Medical Association.
Enlightened politicians such as Jamaica’s Health Minister, the Honourable Rudyard Spencer and his staff find themselves in an unenviable situation. They are representing or working for a government that continues to support legislation that contributes significantly to the high prevalence of HIV/AIDS among MSM. Unlike in South Africa where church leaders have come together to support efforts aimed at reducing the incidence of HIV/AIDS, in Jamaica church leaders are busy trying to preserve the homophobic climate and legislative framework that assisted in giving rise to the public health problems the country faces today.[7]
It will be interesting to monitor how the situation will evolve in Jamaica. Many ethical questions arise not only with regard to the country’s unjust discrimination against its gay citizens, but also from a public health ethics perspective. The ethical challenge for Jamaica is far from unique, and it is this: is it ethical to uphold particular cultural values regardless of the human cost involved?
Udo Schuklenk
[1] Ministry of Health Jamaica. (2010) Culture Shift Needed to Help in the Fight Against HIV/AIDS. http://www.moh.gov.jm/general/latestnews/1-latest-news/346-culture-shift-needed-to-help-in-the-fight-against-hivaids- [Accessed 13 February 2011]
[2] Kaiser Health News. (2009) Continued Discrimination Against Jamaican HIV-Positive MSM Hinders Their Efforts To Seek Health Care, Advocates Say http://www.kaiserhealthnews.org/daily-reports/2009/march/12/dr00057435.aspx?referrer=search [Accessed 13 February 2011]
[3] Joel Feinberg. (1988) The Moral Limits of the Criminal Law (Vol. 4): Harmless Wrongdoing. Clarendon Press: Oxford.
[4] Ministry of Health. (2010) UNGASS Country Progress Report 2010 Reporting: Jamaica National HIV/STI Program. Jamaica, March 31, 2010: p. 32.
[5] Human Rights Watch. (2004) Hated to Death. Human Rights Watch 16(6B): 1-79.
[6] World Medical Association. (2006) Declaration of Geneva. WMA: Geneva. http://www.wma.net/en/30publications/10policies/g1/index.html [Accessed 13 February 2011]
[7] Thaddeus M. Baklinski. (2008) Jamaican Church Leaders Say Homosexuality Will Not Be Accepted As Normal. http://www.lifesitenews.com/news/archive/ldn/2008/feb/08021804 [Accessed 13 February 2011]
