Can calling someone gay lead straight to court?
There is no doubt that, as a nation, Jamaica is far more tolerant of homosexuals than it was even 10 years ago. As tolerance increases, the stigma associated with gays decreases to the point where, in certain countries, it is no longer defamatory to falsely accuse a straight person of being gay. In other countries, it may still be defamatory depending on the circumstances. What about Jamaica?
A defamatory statement is one that tends to lower the person in the estimation of right-thinking members of society generally, or exposes him to public hatred, contempt or ridicule, or causes him to be shunned or avoided. Allegations of sexual immorality could therefore form the basis of a defamation claim, especially if the sexual acts in question (like buggery) were also illegal. 'Buggery laws' (for lack of a better phrase) are being reviewed in many countries to determine whether they are in line with modern attitudes towards privacy and morality.
In May of this year, a New York appellate court reversed decades of authority and ruled that it can no longer be presumed that a false allegation of homosexuality will cause reputational injury. The Court said "In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions ... and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct". They went on to say, "While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated, the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians [and bisexuals], merely because of their sexual orientation, belong in the same class as criminals".
The passage above identifies two important factors that led to the decision. First is the evolution of social attitudes. Second is the removal of legal sanctions from homosexual activities.
It is apparent that social attitudes towards gays have changed significantly in Jamaica over time. Until 2004, Sandals Resorts only catered to "two [heterosexual] people in love". In 2008, gays would not be allowed in Cabinet. And it was less than two months ago that Beenie Man apologised for lyrics in which he said he was "dreaming of a new Jamaica" where we would "execute all of the gays". All of that has changed. But has it changed sufficiently so that "right-thinking members of society" no longer hate, ridicule, shun or avoid gays? Who are these so-called right-thinking members of society, anyway? Our parliamentarians, perhaps? Or is that a different kettle of fish?
Certainly, if Parliament were to repeal section 76 of the Offences Against the Person Act, aka the 'Buggery Law', it may be seen as a reflection of the revolution of social attitudes. That, by itself, would not mean that we could go around 'accusing' people of being gay without there being any consequences if it turned out to be untrue. There are many perfectly legal acts that can cause severe reputational damage for which the courts will award compensation. Much depends on the circumstances of the case, the reputation that the person enjoyed as well as society's views, inclusive of double standards. For example, an allegation of adultery is likely to cause more damage to a Jamaican woman's reputation than it would to a Jamaican man's. Conversely, a false allegation of homosexuality is likely to cause more damage if made against a man than if made against a woman. The reality of our society is that "man to man is so unjust" but woman to woman - not so much. We'll get to lesbians in a moment.
Even if Parliament doesn't repeal the Buggery Law, is it reasonable to conclude that homosexuals belong in the same class as criminals? Contrary to popular belief, homosexuality is not illegal in Jamaica. Buggery is illegal in Jamaica. Buggery is nothing more than anal sex between two men or between a man and a woman. Let me repeat, anal sex between a man and a woman is illegal in Jamaica, described as an "unnatural offence" under our law. Therefore, lesbians cannot be caught under the Act but any man who has had anal sex with his wife could face up to 10 years in prison. Imagine what would happen if a disgruntled ex-wife reported her former husband to the police for consensual heterosexual anal sex done in the privacy of their bedroom. Now that's what you would call an unlucky bugger.
Even though straight men may be guilty of buggery, the argument still stands that a gay man is more likely to commit the crime and therefore a false allegation of homosexuality would still imply criminal conduct. There's an obvious danger once we get into the realm of likelihoods. A Rastafarian is arguably more likely to smoke ganja than an Adventist. Does that mean that falsely accusing someone of being a Rastafarian is defamatory unless and until the possession and smoking of Ganja is decriminalised? How does one prove that someone is straight, gay or Rastafarian for that matter? How will Queen Ifrica know if there's really any "fish in her ital dish"?
Obviously, Jamaica is a long way away from the legal or social changes that have led foreign courts to rule that falsely calling someone gay is not necessarily defamatory. Like it or not, the signs of change are everywhere. Recently, the Executive Director of Jamaica Forum of Lesbians All Sexuals and Gays (JFLAG) appeared on Television Jamaica's "All Angles" programme. Yet, because of fear of violence, he refused to allow his face to be seen. His name, however, was prominently displayed on screen. Apparently, JFLAG is only fearful of illiterate Jamaicans, but even that represents change. Surely, a person who advocates violence against anyone because of his or her sexual orientation is not among the right-thinking members of our society. Surely, the statement that our attitude towards gays has not changed at all is more than a little fishy - it's a whale of a lie.
Gavin Goffe is a Partner at Myers, Fletcher & Gordon and is a member of the firm's Litigation Department. Gavin may be contacted via email@example.com or through the firm's website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.