Tuesday, March 29, 2011

Submission to the Global Commission on HIV and the Law

Submission to the Global Commission on HIV and the Law
Contact Details
Name of Authors: Anton Rocke and Joel Simpson
Name of Organisation: Society Against Sexual Orientation Discrimination
Are you submitting as an Individual or on behalf of an organisation?
Answer: Organisation
Please note that you can only make 1 submission per person and per organisation.
Phone Numbers: (Office) +592-226-5155; (Cellular)+592-623-5155.
Date of submission: March 14, 2011
Address: CIDA PSU Building – 56 Main and New Market Streets, North Cummingsburg
City: Georgetown
Country: Guyana
Laws and practices that effectively criminalise people vulnerable to HIV
In Guyana, sex workers suffer violence and discrimination on a constant basis. This is supported by the UNAIDS report - “Whoring,’ ‘Boopsing,’ and Other Business: A Situational Analysis of Sex Work and the Sex Industry in the CARICOM” which categorises the physical violence and harassment that sex workers experience, because of the type of work they do, into two main groups of perpetrators: police and non-state actors.[1] Guyana’s laws criminalize cross-dressing, consensual sex between men and aspects of sex work, thereby making vulnerable, these groups, transgenders, gay, bisexual and other men who have sex with men and sex workers, to discrimination which causes disempowerment, barriers to effective prevention, treatment, care and support services, thereby exacerbating their vulnerability to HIV.
Under Section 166 of the Summary Jurisdiction (Offences) Act 1894, of the Laws of Guyana, every person who:
a) being a male person, knowingly lives wholly or in part on the earnings of prostitution; or
b) being a male person, in any public place persistently solicits or importunes for immoral purposes; or
c) loiters about, or importunes any person in, any street or other public place for the purpose of prostitution.
Transgender persons are criminalised for expressing their identity by ‘cross-dressing’ under section 153 of the Summary Jurisdiction (Offences) Act, Laws of Guyana, which establishes as an offence:
“being a man, in any public way or public place, for any improper purpose, appears in female attire or being a woman, in any public way or public place, for any improper purpose, appears in male attire… ”[2]
This denial violates the right to freedom of expression, the right to privacy and personal dignity and gives tacit approval to the frequent attacks cross-dressers face in the streets, especially at nights.
(1) Police Assault and Abuse:
In Guyana, police have been accused by cross-dressers of harassment and physical violence. Transgender sex workers reported to SASOD that police often extort sexual favours from them, and even rape and brutalize them. Most of the cases are not reported to the police, due to the lack of confidence in their response. “Petronella,” (alias) a cross-dressing sex worker, that some police further participate in the harassment of gay men on the streets, adding that there is no recourse to complain since the existing laws criminalize consensual sex between men and cross-dressing.
In February, 2009, seven persons were charged for cross-dressing. The charges were not dropped and the seven were each fined for the offence. The detainees reported to SASOD, that police refused to allow them to make a phone call or to contact a lawyer. They were photographed by police and then told to take off all of their “woman clothes” in front of several police officers. One defendant stated that “after stripping [us] the police told us to bend down and they search us as if to make fun of us and our sexuality.”
The cross-dressers also reported that they were ordered to put on “man clothes.” Police kept five of the seven in solitary confinement until the day of the trial, contending that it was for their safety. In court, when handing down the sentences, the then acting Chief Magistrate Robertson told the detainees they were not women but men, and exhorted them to “go to church and give their lives to Christ.”[3]
Some police have reportedly used the existence of the laws for extortion. Males who are found in compromising positions are made to pay bribes rather than face charges and the possibility of prosecution. Although consensual same-sex activity between adult men is difficult to prove, the damage is really in the accusation itself because of the stigma attached to homosexuality.
(2) Abuses by Non-Sate Actors
Sex workers in Guyana, and other parts of the world, face disproportionate levels of violence which is often unreported. The assault, battery, rape and even murder of sex workers, which is all too common in the industry, goes unnoticed because of the existing legal framework around the profession which prevents sex workers from reporting violence. The stigma and discrimination perpetuated by sex-work related offences has made violence against sex workers acceptable.
SASOD is a founding partner in the Guyana Sex Work Coalition and recalls the violence faced by a female sex worker at the hands of a male client:
“Soon as the sex was over, this man started slapping and cuffing me up and he empty my purse and take away all my money, not just what he pay me,” recounted a female sex worker based in New Amsterdam, who had been assaulted and robbed by a client, to an advocate at United Bricklayers, a local AIDS-prevention, community-based organization. “Now how could I go to the police and make a report when sex work is not really legal,” she added.
The Terborg (2006) report, which details interviews with female, gay male and cross-dressing sex workers, concluded that the majority felt rejected by society.[4] An interviewee stated:
“Society doesn’t try in any way to understand the position of gays. I have experienced stigma and discrimination when looking for a job. When I went to a store for a job and the proprietor told me to find my own work, then, chased me’!
Some people want to appear to be non-judgmental and still want to find out why you are like that.”
Social stigma and discrimination based on gender identity is common in many parts of the Caribbean, including Guyana, and in some cases resulting in violent attacks, some of them fatal, against people perceived to be lesbian, gay, bisexual or transgender.[5] In 2003, during a debate to revise Article 149 of the Constitution to include a ban on discrimination based on sexual orientation, SASOD and other civic organizations supported the move to prohibit such discrimination but some sections of the religious community and the bill was never voted on, as the government presented but did not support it.
Men who have Sex with Men (MSM)
In Guyana, the Criminal Law Offences Act (8:01) under section 351 criminalizes consensual sexual activity between men while Sections 352 and 353 criminalizes 'buggery'. The laws do not distinguish consensual and non-consensual acts.
The existence of these laws reduces access to treatment, care and prevention services by men who have sex with men. These so-called ‘sodomy laws’ facilitate discrimination within the health and social services sectors. Moreover, these laws therefore place an added burden on the health sector and this is an additional reason to repeal them.
According to Amnesty International, “discrimination against people based on their sexual orientation or gender identity, including men who have sex with men, manifests itself in a number of ways including the criminalization of same-sex relationships. Men who have sex with men often face additional stigma because of the incidence of HIV/AIDS in gay men and the history of the pandemic that was initially associated mainly with gay men in the global North.”[6]
The latest surveillance study finds a HIV prevalence of 19.4% among MSM,[7] which is ten times the national average, according to UNAIDS estimates. The Government of Guyana has also acknowledged that MSM are also a vulnerable group. The problem is that there is an inconsistent response to sexual and gender minorities who are in need of healthcare and related social services since there is an accepted norm of discrimination. There are some healthcare professionals who would exercise their own discretion in terms of how they treat sexual and gender minorities. Persons who are discriminated against do not have recourse to any remedies within the health system.

[1] Kempadoo, Kamala, et al. ‘Whoring,’ ‘boopsing,’ and other business: A Situation Analysis of Sex Work and the Sex Industry in the CARICOM - Final Report, page 88. UNAIDS, Caribbean.
[2] Laws of Guyana, Chapter 8:02, Summary Jurisdiction (Offences) Act; Section 153, (1)(xlvii), In: http://www.gina.gov.gy/gina_pub/laws/Laws/cap802.pdf
[4] Terborg, J. Report on HIV Prevention and Care among FSW and MSM in Georgetown, Guyana, 2006, pg. 75.
[5] Human Rights Watch, Hated to Death: Homophobia, Violence and Jamaica’s HIV/AIDS Epidemic. New York 2004. Available at: http://hrw.org/reports/2004/jamaica1104
[6] Amnesty International, Report on HIV/AIDS in Guyana and the Dominican Republic. AI Index: AMR 01/002/2006
[7]Ministry of Health, Guyana Behavioural Surveillance Survey 2008/2009 Report, page 60.