THE fact that only some forms of marital rape are criminalised under Jamaican law, has attracted the attention of the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW), which has urged the government to amend the law with a view to criminalising all forms of marital rape.
Under the Sexual Offences Act 2009, a husband commits the offence of rape against his wife in a limited number of cases, such as when they are separated, when a divorce proceeding is pending, a restraint order has been issued against him, or when he knowingly suffers from a sexually transmitted infection. Rape is considered to have taken place if he had sexual intercourse with her in any of these cases without her consent, or if it had been extorted by physical assaults or threats or fear of physical attack to herself or a third party.
But despite including marital rape under this new Act, which provides stricter penalties for certain offences which were dealt with by the Offences Against the Person Act, the committee during its 52nd session in New York recently, expressed concern that only some aspects of non-consensual sexual intercourse within marriage are illegal. They have urged Jamaica to criminalise all forms of marital rape with no restrictive conditions within a clear timeframe.
For their part, the delegation that represented Jamaica at the session — inclusive of Information Minister Sandrea Falconer and executive director for the Bureau of Women's Affairs Faith Webster — outlined in their report to the committee that the definition was arrived at as a matter of policy after extensive discussion, consultation, and agreement as to the appropriate legal framework.
They said, it was agreed upon after, "Reflecting the appropriate balance between the need to prosecute someone for a serious offence while respecting the sanctity of the institution of marriage."
Webster told All Woman that CEDAW's position would have to be discussed with the wider public on a broad scale before any amendments could be done.
Under the Sexual Offences Act, a spouse who is found guilty of committing marital rape in a Circuit Court can face anywhere from 15 years to life imprisonment. Meanwhile, if they commit the act of grievous sexual assault, they are liable upon conviction in a Resident Magistrate's Court to imprisonment for up to three years. If convicted in a Circuit Court, they could also face up to life imprisonment for this type of assault.
Grievous sexual assault is committed under the Act when an offender penetrates the vagina or the anus of the victim with a body part other than his penis or an object or if they cause another person to carry out these offences. Placing his penis in the victim's mouth or causing another person to do so is also illegal if done by force or without the consent of the woman. So too is placing his mouth on the vagina or vulva of the woman or causing another person to do this without her consent.
Of note, the delegation pointed out, was the fact that the Sexual Offences Act has corrected certain presumptions, particularly as it relates to the evidence regarding a woman's sexual history.
"That a woman who has had sexual intercourse outside of marriage is an unreliable and untruthful witness is now generally regarded as unacceptable," they said.
Falconer pointed out during her presentation to the committee that the Centre for Investigation of Sexual Offences and Child Abuse has been strengthened and expanded.
"The government recognises that the victims of sexual offences are often women from the lowest economic quintiles. This group has historically had poor access to justice. The government is committed to working closely with NGO partners and the Jamaican Bar Association, among others, to improve access to Legal Aid services by victims," she told the committee.