A Joint Select Committee of Parliament has been considering An Act to Amend the Incest (Punishment) Act and An Act to Amend the Offences Against the Person Act, and in so doing has deliberated on, among other things, the definition to be accorded to the offence of rape.
The current definition of rape under Jamaican law, simply put, is the penetration of the vagina of a woman by the penis of a man without her consent. The ongoing debate provides an opportunity for the Parliament to take a fresh look at how Jamaican law treats with crimes of a sexual nature.
I encourage Parliament not be restrictive in its deliberations on 'rape' and 'sexual intercourse' but rather consider a more expansive and proactive approach to criminalising any conduct that could be classified as sexual violence. This is particularly important where an act of rape accompanied by other cruel and degrading treatment is becoming more prevalent in Jamaica. Through careful drafting this could be done without unwittingly legalising or decriminalising the offence of buggery, a situation certain members of parliament and civil society seem anxious to guard against.
Rape and Sexual Violence
It would appear from all reports that the intention of the legislators is to confine the meaning of rape as a sexual offence committed by a man against a woman without her consent. This, in circumstances where societal realities would suggest that the offence need not, and should not, be given such a narrow scope. It is too naïve to suggest that a woman cannot be the perpetrator of acts of sexual violence against a man.
Further, that women have not, and do not take sexual advantage of men in situations where the question of consent has been nullified by the operative circumstances. Similarly, an act of rape, in the sense of non-consensual sexual intercourse, can be committed by woman against woman and man against man.
If Parliament recognises the need for the law to keep pace with society, then its deliberations need to be influenced by the realities that obtain in society. It is not enough to separately define other sexual offences, making them gender-neutral, but preserving rape as an offence committed exclusively against women by men. Neither is it appropriate to relegate conduct that should properly be classified as rape to lesser offences, such as indecent assault or grievous sexual assault, because the parameters of rape have been fixed too narrowly. The prescribed punishment for these offences is usually less than that for rape.
Rape has been the subject of judicial deliberations in international criminal law. In the landmark decision of the Prosecutor v Akayesu, a Trial Chamber at the International Criminal Tribunal for Rwanda (ICTR) provided the first modern definition of rape in international law since the 1948 Genocide Convention was adopted. In that case, the Chamber determined that rape is a form of aggression and as such it cannot be defined in terms of objects and body parts.
Rape, like torture, is used to intimidate, degrade, humiliate and punish and in fact can play a role in the control and destruction of a person. The Chamber then defines rape as 'a physical invasion of a sexual nature, committed on a person under circumstances which are coercive'. Coercive circumstances need not involve physical force. Conduct which prey on fear and desperation may amount to coercion. These would include threats, intimidation, extortion and other acts constituting duress.
A narrower definition of rape has been applied at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Prosecutor v Furundzija. Here the Chamber determined that the key elements are sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any object by the perpetrator, or of the mouth of the victim by the penis of the perpetrator, by coercion or threat of force, against the victim or a third person.
This reasoning clearly goes against the principle expressed in Akayesu that rape cannot be mechanically defined in terms of objects and body parts. That notwithstanding, even with this more conservative approach, Furundzija still goes further in defining rape than the definition being contemplated by the Jamaican legislators, in that it comes much closer to being gender-neutral where it treats as rape 'penetration.of the victim.by any object by the perpetrator'.
Remarkably, the Furundzija definition of rape closely resembles what the Jamaican legislators seem prepared to define as 'sexual intercourse'. Therefore, it appears that under Jamaican law a man with whom a woman has had sexual intercourse against his will may lay a complaint against the woman, but the offence would not be called rape.
Now, if the conduct is substantially the same, what is the rationalé for allowing a woman to sue for rape, but a man is only able to sue for an aggravated or grievous sexual assault? It is not enough to say punishment for these other offences will be severe. If that punishment is less than that provided for rape, then the law would not be evenhanded in punishing what would be substantially the same conduct.
The Trial Chamber in Akayesu also considered other types of sexual crimes that may not include penetration of any sort. International criminal justice recognises that sex-based crimes can be so egregious that they can be used to strike at more than just the victim's physical person. As such, their effect extends beyond the insertion of an object or body part into orifices of the victim that are intrinsically sexual.
The Chamber determined that sexual violence is 'any act of a sexual nature which is committed on a person under circumstances which are coercive'. Therefore, sexual violence need not be limited to a physical invasion of the human body and may include acts which do not involve penetration or even physical contact. In the particular circumstances of that case one victim was undressed and made to perform gymnastics naked in front of a crowd.
Criminalise conduct accompanying the sex-based crime
There has been not only an increase in the number of sex-based crimes in Jamaica, but also an increase in the levels of accompanying acts of depravity, degradation or cruelty inflicted on the victims. For instance, it has now become quite prevalent for such acts to be recorded or photographed by the perpetrator or his cohorts.
The pictures are then used to embarrass or blackmail the victim, or are circulated as pornography. In such circumstances, it is proposed that Parliament separates the sexual acts from the attendant circumstances, and treat these circumstances as sexual violence within the Akayesu definition discussed above.
It could be argued, for instance, that a victim of rape who also suffers the photographing and/or video-taping and publication of the assault has had two offences committed against her/him. The law should treat the rape as a separate crime from the video-taping and publication.
With the technology available today, the broadcasting of the assault often takes place within the local community, as well on the World Wide Web. The degradation and humiliation of the victim can therefore continue into perpetuity as there is no control over the preservation and dissemination of the images of the rape.
It is not enough to punish and deter such conduct to merely treat these additional circumstances surrounding the rape as aggravating circumstances for the purposes of sentencing. This is especially so where the appropriate punishment may take the sentence outside of the legal maximum that the judge is allowed to impose.
The two acts deserve separate treatment as criminal offences. Where the conduct is treated as a single criminal offence, committed under aggravating circumstances, the perpetrator and his cohort stand to benefit if, due to some legal technicality, the prosecution is unable to prove the rape. By separating the conduct into two separate offences Parliament ensures that the Court will still be able to punish the perpetrators, even though the prosecution fails to prove the substantive rape. The videographer or photographer would then be treated as a principal, not an accomplice, and punished accordingly.
In other circumstances, the question of rape may not be relevant at all. The victim may have consented to the sexual intercourse, but is unaware or did not consent to being recorded or photographed. The law should offer meaningful protection to a victim of what is, in principle, a crime of a sexual nature.
In another situation a victim may be drugged, undressed placed in a degrading position with other persons, animals, or certain objects and photographed. Later the perpetrator tries to use these images to blackmail the victim. The act of drugging should be a separate crime from what, by the Akayesu definition, would have been an act of sexual violence.
To bundle them together as an aggravated assault does not take full account of the fundamental right of the victim not to be subjected to cruel, inhuman and degrading treatment.
Both Akayesu and Furundzija have received different levels of acceptance and application at the ICTR and ICTY, respectively. While there are arguments to support both of these two legal definitions of rape, the Akayesu rape and sexual violence jurisprudence is, in my view, the more progressive one as it takes better account of the range of experiences which a victim of sexual violence may be subjected to. In this sense, it is more 'victim sensitive'.
For instance, the use of the term 'invasion' in Akayesu, speaks to more than just physical 'penetration' as contemplated in Furundzija, and focuses on the vulnerability and sense of violation that victims of sex-based crimes usually feel. It also recognises that rape is much more than a physical attack on the victim and that anyone can be the victim of rape.
Rather than trying to catalogue specific acts that could amount to a sexual offence, it is proposed that Parliament instead adopts the definition of rape and sexual violence provided in Akayesu. By so doing, the Jamaican Parliament would be in sync with international criminal jurisprudence.
In the result, we will expand the categories of crimes of a sexual nature, as well as the possible victims of such crimes, and avoid situations where certain acts committed against a victim may go uncharged or unpunished because they do not fit within the four corners of the relevant legislation. In so doing, our legislators take a more robust and proactive approach to the legal protection of victims of sexual violence.
Furthermore, by applying an open-textured definition to rape and sexual violence Parliament will make all crimes of a sexual nature gender-neutral. In this respect the law offers protection to males and females and respects the principle that all persons are entitled to equal treatment under the law. Additionally, this approach would support other efforts, like the proposed Victims Charter, to provide real and substantive rights to victims in a justice system which hitherto has not paid sufficient attention to their rights.
Preserving the offence of buggery
Whether or not buggery should remain a crime under Jamaican law is a matter that I am not intending to examine here. Suffice it to say, if the mischief that Parliament wants to carefully avoid is the legalisation or decriminalisation of buggery, then careful drafting of an express provision could be included in the Act to preserve the offence of buggery. In any event, buggery is an offence completely different to rape, and fears that a broadened definition of rape would somehow legalise or decriminalise buggery are without legal foundation.
There are basic canons of construction that are applied by legal minds to any piece of legislation promulgated by Parliament. The first rule, in this context, is that Parliament is expected to state with clarity the type or types of conduct it means to criminalise. Applying ordinary rules of statutory interpretation, once an express provision is made in respect of buggery, then that specific provision would over-ride any general statement in the statute concerning the definition of rape.
To suggest that broadening the definition of rape would leave some loophole for buggery is therefore counter-intuitive. The need for real reform in the characterisation of crimes of sexual violence should not be discouraged simply because a conservative approach is deemed necessary in the treatment of the single offence of buggery.
If the legislators were to adopt laws consistent with international sexual violence jurisprudence it would go a far way in protecting the human rights of victims of such violence. The nature and manner of perpetration of crimes of sexual violence demand that they be comprehensively and effectively prosecuted so as to punish and deter such conduct. At the same time, the non-traditional victims of crimes of a sexual nature would appreciate that the law exists for their protection as well.
Alayne Frankson-Wallace is a former Senior Resident Magistrate (Ag.) now an International Criminal Prosecutor with the United Nations, prosecuting breaches of international human rights and humanitarian law