A Jamaican female judge who is now prosecuting the Rwandan genocide trial in which rape has been one of its worst features, says women can rape men and

other women.

At the same time, Alayne Frankson-Wallace, a prosecutor for the United Nations International Criminal Tribunal for Rwanda (UNICTR), now underway in Arusha, Tanzania, has cautioned the Jamaican parliament against being “restrictive in its deliberations on rape and sexual intercourse”.

“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,” she said.

“Similarly, an act of rape, in the sense of non-consensual sexual intercourse, can be committed by woman against woman and man against man,” she argued.

Frankson-Wallace made her comments in response to the ongoing debate led by the Joint Select Committee of Parliament considering amendments to the Incest (Punishment) Act and An Act to Amend the Offences Against the Person Act.

The judge said the debate provided an opportunity for the Parliament to take a fresh look at how Jamaican law treated with crimes of a sexual nature and suggested that “a more expansive and proactive approach (be taken) to criminalising any conduct that could be classified as sexual violence”.

“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,” said Frankson-Wallace, younger sister of Jamaica Manufacturers Associaton (JMA) president, Doreen Frankson.

In an article made available to the Observer, the judge noted that, among other things, the Select Committee had deliberated on the definition to be accorded to the offence of rape, indicating it would wish to leave it as currently defined as the penetration of the vagina of a woman by the penis of a man without her consent.

She has apparently been able to draw on her experience as one of those prosecuting persons accused of genocide and serious breaches of international humanitarian law for acts committed in the territory of Rwanda in 1994, and in which rape was massively used as a weapon against civilians.

Three of the key political leaders in Rwanda at the time and who are believed to be among the masterminds of the genocide, are on trial. They are accused of using the political machinery of Rwanda, in concert with the military leaders and business people, to plan and implement the massacre of the Tutsi ethnic group. They are charged with genocide, conspiracy to commit genocide, direct and public incitement to genocide, rape and extermination as crimes against humanity.

Before joining the UNICTR in 2005, Frankson-Wallace served as Resident Magistrate for the parish of Westmoreland, where she was promoted to acting Senior Resident Magistrate in 2004. She began her judicial career in 1997 when she was assigned to the parish of St Catherine. At the time of her appointment, she was the youngest person to hold such a position in Jamaica. Prior to this appointment, she was practising as counsel at the private bar.

In her article, Frankson-Wallace said it would appear that the intention of the Jamaican legislators was to confine the meaning of rape to a sexual offence committed by a man against a woman without her consent, in circumstances where societal realities would suggest that the offence need not, and should not, be given such a narrow scope.

She declared that it was not enough to separately define other sexual offences, making them gender-neutral, but preserving rape as an offence committed exclusively against women by men, as the Joint Select Committee proposed.

“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.”

She said that rape had been the subject of judicial deliberations in international criminal law, citing the landmark decision of the Prosecutor v Akayesu a Trial Chamber at the International Criminal Tribunal for Rwanda which 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 judge noted that there had 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”.

She also argued that buggery was an offence completely different to rape and fears that a broadened definition of rape would somehow legalise or decriminalise buggery “are without legal foundation”.

(See the Sunday Observer for the full text of Judge Alayne Frankson-Wallace’s article)