11.07.12

Can Calling Someone Gay Lead Straight To Court?

Gavin Goffe
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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. In 2008, gays would not be allowed in Cabinet. In 2004, Beenie Man was “dreaming of a new Jamaica” where we would “execute all of the gays”. Until 2004, Sandals Resorts only catered to “two [heterosexual] people in love”. 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.