Local attorneys differ on need for 'stealthing' lawWednesday, October 13, 2021
BY CANDICE HAUGHTON
Jamaican attorney-at-law Michelle Thomas has applauded a move by California Governor Gavin Newsom to make it a civil offence to remove a condom during sexual intercourse without the other party's consent, and has called for a similar law in Jamaica.
What is popularly described as “stealthing,” has been added to California's civil definition of sexual battery and the victim could sue the perpetrator for damages, including punitive damages.
According to Thomas, while enforcing such a law may be difficult, if Jamaica should introduce a similar legislation the country will take a step in the right direction to deter people from taking advantage of their sexual partners.
“I would like to see this implemented but the legislative arm would have to fine-tune who it is that we will embark on fact-finding when a case arises. Sex is a consensual think and if any point during the act any party is not consenting to an activity, then it would be considered rape, especially if it is a penetration,” said Thomas.
“If it is that the legislators in Jamaica goes as far as to put [this] into law and you know that you have a STD (sexually transmitted disease) and infect someone then you would be liable. It could go as far as to even suggest that if you have sex and you remove the condom without the party's consent then it would be something that you would find yourself in conflict with the law,” added Thomas.
She argued that given some Jamaicans are still faced with the possibility of unwanted pregnancies, “ we have to ensure that we do all that we can to ensure that at any given time there is consent and persons are in an amicable agreement as to what is going on every step of the way.”
California is the first state in America to introduce a Bill of this nature, and it did so by expanding the civil definition of sexual battery and allowing victims to sue for punitive damages.
However, when contemplating how Jamaica could enforce such a law, Thomas said, “a tribunal would have it hard to prove whether or not the person was in a sufficient mental state to understand what was taking place. There's a lot of things to grapple with and it would have to be a civil suit, because it would be my word against his word. The judge would have to go beyond what both persons said to go and look at the character of the witness to see who would be telling a lie versus who would be telling the truth”.
The attorney said since Jamaica doesn't have a law prohibiting this kind of action, the next best thing is to ensure that people, including youngsters, are properly educated on the matter.
“I think the Government could do more public education campaigns to sensitise even our youngsters that wearing a condom is important, family planning is important and parenting, when you are not ready to be a parent is vital.
''We need more public education and just giving citizens a basic level of understanding that we are embarking on serious times, and some of us uncertainty in terms of finances and so when you are engaging in sex, you must do so with a level of maturity and understanding. Sex is not just for satisfaction but it could have long-term implications, not just for pregnancy but also sexually transmitted diseases as well as other issues,” Thomas said.
In the meantime, veteran attorney-at-law K Churchill Neita agreed that a law of this nature would be difficult to enforce, and questioned if one is even necessary.
“I wonder how feasible that is. It seem to be a little bit trifle because if a woman is there having sex and she agree with it and him ask if him can get the condom off and she says no, and he still takes it off, what she going to do? The only thing she can do is stop having sex. It doesn't even make sense to me,” Neita told the Observer.
“I don't think Jamaica would have to institute a law to make it a crime if a man had removed a condom without the permission of the other party. If the party is aware and she doesn't want it, she could then and there say 'listen, that's it,''' added Neita.