Let the people vote

House committee backs referendum on abortion, changing buggery law

Senior staff reporter

Wednesday, December 12, 2018

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A two-year-old parliamentary committee reviewing sexual offences legislation has recommended that buggery, abortion and other issues of “broad public divide” could be put to a referendum.

The committee felt that Parliament “as a whole” should consider the issues, rather than have them be the subject of the committee's recommendations.

The recommendations, while an obvious setback for gay rights and pro-choice supporters who had hoped for more affinity with their cause, could reignite interest in Prime Minister Andrew Holness's pre-election proposal for a super referendum to address the controversial issues.

The committee also refused to: increase the age of consent from 16 to 18; make incest gender neutral; decriminalise living on the earnings of prostitution; restrict judges' discretion in allowing evidence of sexual history; approve detention of children below the age of 12 in juvenile correctional centres or remove the special authority under which children under 12 can be detained in a juvenile correctional centre.

However, there were a number of recommendations which should bring solace to sections of the Jamaican community which have been pleading for the changes to the four pieces of legislation reviewed by the committee — the Sexual Offences Act, the Domestic Violence Act, the Offences Against the Person Act, and the Child Care and Protection Act — and avoid the temptation to reduce the 24-month-long ordeal as a waste of time.

Among the most important was the recommendation to delete section five of the Sexual Offences Act, which contends that rape could not occur within the context of a marriage, unless conditions set out in the provision were met.

“This was viewed as placing married women in a disadvantageous position, when compared to other women in relationships,” the report said.

Included among the changes recommended by the committee which covered two chairmen — former and current ministers of justice Mark Golding and Delroy Chuck — were for:

• Aggravated sentencing for the murder of pregnant women, as well as other vulnerable individuals including the elderly, people with disabilities and children;

• A new offence of “predatory sexual assault” in cases where a sexual assault victim is a child under the age of 12 or someone with a mental disorder;

• Prohibition of corporal punishment in all schools, public institutions for the care, instruction or guidance of children in the care of the State, and in all public places;

• Expand the court's ability to make a Parental Order to bind parents over for the good behaviour of a child, with a penalty of being sent to parental seminars;

• State or parents to be obligated to ensure children between the ages of four and 18 receive intellectual stimulation, either in school or through an appropriate form of educational instruction;

• Prohibit the employment of children in massage parlours, betting, gaming and lottery activities, and the promotion of parties and events outside of commercial sale within an establishment;

• Foster care regulations be developed, including a foster parent system, standards and protocol for children in foster care; and

• Aggravated assault on vulnerable persons' cases to be expanded beyond females or a male child below the age of 14 to include all vulnerable persons.

The committee noted that among the issues which sparked intense debate over the 24 months were: the proposal to broaden the current definition of rape to include to include other forms of penetration; the issue of marital rape; the proposal to increase the age of consent to 18 and the issue of consensual sex between children under the age of 16; proposal for abortion in certain specified circumstances; and the proposal to align the penalty for forced anal penetration with that of forced vaginal penetration.

The committee said that it had extensive discussions on the need to recognise forced anal penetration as an offence, and to align the penalty with that of forced vaginal penetration of the anus of a male or female as serious and heinous as the offence of rape.

“We wanted to include a maximum penalty of life imprisonment for forced anal penetration, and sought to achieve this by recommending that non-consensual anal penetration be treated as an element of grievous sexual assault, with an expressed intent that this should not be construed as impliedly amending or repealing any provision in the Offences Against the Person Act, since this would be a different offence from buggery,” the committee reported.

“We were advised that taking this approach may not have the desired effect, because any attempt to amend the law, so as to recognise difference between consensual and forced anal penetration, could be interpreted as impliedly amending the buggery law, thereby creating the possibility that the provision could lose the protection under the Saving Laws Clause, and could therefore be open to challenge.

“The Lambert Watson case as well as a recent case in India where a similar approach was taken were used as examples to highlight this risk. We also learnt that amending the law in this manner would be incompatible with the current policy position of the Government that the provisions related to buggery be put to a referendum with other matters of broad public divide.

“A similar consideration arises in relation to any amendment of the existing law concerning abortion. Your committee considers that, rather than have this be the subject of a recommendation coming from the committee, it ought to be by Parliament as a whole,” the report stated.

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