Incest

Incest is usually hidden by the family, even when the girl child becomes pregnant after being sexually violated by her father or grandfather. The most upsetting aspect of the cover-up is that it is not only the male violator who ensures silence, but the women in the family who assist them by remaining silent to prevent “a scandal”, contrary to the best interests of the child.

The law about incest is governed by the Incest (Punishment) Act 1948. It provides that any male person who has carnal knowledge of a “female person” whom he knows is his grand-daughter, daughter, sister, or mother, shall be guilty of a misdemeanour. The offence is triable in a Circuit Court and bears a sentence of a term of imprisonment with hard labour “not exceeding” 5 years, that is a maximum penalty of 5 years. If the female child is under 12 years, then the maximum prison term with hard labour provided in the Act is 10 years.

The Act specifically states that it is immaterial to the charge that the carnal knowledge was done “with the consent” of the female person. It is therefore no defence to say that “she asked for it,” or “she seduced me,” or “she dressed in provocative outfits,” or “she is not sexually innocent,” or “she knew what I wanted and agreed and enjoyed it”. All these and more original excuses are irrelevant to the charge in relation to an under-aged girl.

The Act provides for an attempt to commit the offence, which is also a misdemeanour and on conviction, the male violator shall be liable to imprisonment with hard labour for a maximum term of 2 years. What then is a misdemeanour?

A misdemeanour is an offence which is below the degree of a felony. It is an offence considered as an inferior crime of a public nature or public evil. It is an offence of whatever openly outrages decency and is injurious to public morals, for example, the exposure by a man of his private parts in a public place.

This then is what incest still is in Jamaica. An offence of an inferior crime despite the inherent evil of the deed.

It is also provided in the Act that on a male being convicted of the substantive offence of incest or of the attempt, of a female person under the age of 21 years, the court shall divest the offender (that is grandfather or father) of all the authority which he had over the female. If the offender is also the guardian of such a female child, then the Court shall terminate the guardianship and appoint another person to be the guardian of the minor female child until she attains her majority or for any shorter period as is determined necessary in the particular circumstance of the case. The Supreme Court, the Act states, by way of a proviso, may on application vary or overturn an order by appointing any other person the guardian of such a child or make orders in relation to any other matter relating to the child.

It should be noted that for the offence of incest to be proved, proof only of penetration is necessary. It is not required nor necessary to prove emission.

I now come to the commission of the offence by female persons as provided by the Act. The statutory provision is that if any female person of the age of 16 years or over the age of 16 years consents for her grandfather, father, brother or son to have carnal knowledge of her (knowing the relationship), she shall be guilty of a misdemeanour and on conviction be liable to a maximum term of imprisonment of 5 years with hard labour.

The Act also provides a test of relationship by stating that when the words “brother” and “sister” are used in the Act, these words include “half-brother” and “half-sister” and it does not matter whether the relationship between the offender and the victim is based on lawful wedlock.

In other words, it is blood relationship that this Act bases its provisions on for the ingredients of the offence. The Act also has a provision that if a person is on a trial for rape, the jury are satisfied that the accused is guilty of an offence under this Act, then, they may acquit the accused of rape and bring in a guilty verdict of incest or the attempt and the person shall be punished accordingly. And, if, in a trial for an offence of incest, the jury concludes that the accused is guilty of unlawfully and carnally knowing or attempting to, of a female idiot or imbecile woman or girl, or carnally knowing a girl under 12 years of age or unlawfully and carnally knowing and abusing a girl between 12 and 16 years of age, then they can acquit the accused of incest and find him guilty of these offences under the Offences against the Person Act and he shall be punished accordingly.

The Act also provides that the wife or husband of a person charged with an offence under the Act may be called as a witness for either the prosecution or defence.

Next week, the Bill laid in Parliament to amend this Act.

Margarette May Macaulay is an attorney at law and a women’s and children’s rights activist.