We have a legislative dilemmaSunday, May 09, 2021
All of us, as legislators, face the dilemma between our moral values and taking decisions to either maintain or repeal laws that are no longer relevant and betray the essential fabric of our constitutional rights. This is where I found myself in 2018 when I refused to sign a joint select committee's report on updating the sexual offences in the Offences Against The Person Act, although I was a member of that committee. I felt it didn't go far enough to confront the contradictions in our legislation regarding boys and girls. I urged the committee then, that rape shouldn't be limited to vaginal penetration by a penis and that non-consensual anal sex should be classified as rape. Technically, a boy cannot be legally raped in our country.
Although the committee heard submissions from over 20 groups, many of whom supported the redefinition of rape to include boys, some evangelical and Christian groups concluded that any redefinition of rape was an attempt to circumvent the existing buggery law and promote homosexuality in Jamaica. Sadly, the definition of rape was never changed in the final report tabled on December 11, 2018. Now a 13-year-old girl has been buggered by five men in St Ann. But, according to our law, this is not rape.
In Jamaica, “sexual intercourse” is defined by law as the penetration of “the vagina of one person by the penis of another person” and rape is a man having sexual intercourse with a woman “knowing” she does not consent. So, in Jamaica, you can only rape a woman, and only in the vagina, and only by a penis. The use of conveniently shaped metal or wooden objects would not be classified as rape but “grievous sexual assault”, according to the Sexual Offences Act.
We are living in denial if we believe that there are not rapists in this country who would happily and forcefully penetrate a woman elsewhere on her body to possibly avoid a rape charge or get a lighter sentence. Furthermore, there's no distinction under the law between a man that rapes another man or boy, or two men engaging in consensual sex. In our jurisdiction this is defined as “buggery”, which is a whole other offence pertaining to another human body part. If the inconsistency in our laws regarding sexual offences are to be modernised, and if some fairness is to be injected, we must be honest about where these laws came from and have the courage to change them.
Courage can force you to stand alone on principle. Courage can create the perception you're choosing battles unwisely that could adversely affect personal ambition. But courage has a responsibility to future generations to take a stand and act in a manner that is in our children's best long-term interest.
When our National Hero Norman Manley stood up against the world and declared Jamaica would ban trade and travel with the apartheid Government of South Africa, he stood alone. He stood for what was right. Jamaica was the first country in the western hemisphere to take such drastic action. Manley had the vision and courage to believe he would be vindicated by history.
Nearly 60 years later, Jamaica finds itself at another historical crossroads. Every day, every Jamaican is faced with choosing between what's right versus what is convenient. But our courage is being held hostage by old colonial and religious indoctrinations.
As a country, we could be far more progressive if we took into account the new Charter of Fundamental Rights and Freedoms, the purpose of which was clearly to remove the multifarious shackles that eroded the rights granted in our Independence constitution. The language of the new charter is the most powerful legislative language ever used in Jamaica. The Government — whether led by the People's National Party (PNP) or Jamaica Labour Party (JLP) — is charged with an obligation “to promote universal respect for, and observance of” fundamental rights, and every Jamaican is “entitled to preserve [the rights] for themselves and future generations”.
The rights are guaranteed, and Parliament is specifically restrained from passing any law affecting these rights, except as can be demonstrably justified in a “free and democratic society”. Included among these guaranteed rights are the right to equality before the law; freedom of expression; freedom of association; equitable and humane treatment by any public authority in the exercise of any function; and freedom from discrimination on the ground of being male or female. It was almost as if the legislative draughtsman intended this charter to ensure Jamaicans would be free at last to evolve to be who we want, or need to be, and to grow and flourish in a society that recognises freedom from discrimination in any form.
However, a closer reading of the charter exposes the exacerbation of the same old societal anomalies that refuse to honestly confront the reality of human sexual behaviour in Jamaica.
“(12) Nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter of Fundamental Rights and Freedoms… relating to:
(a) sexual offences;
(b) obscene publications; or
(c) offences regarding the life of the unborn,
shall be held to be inconsistent with or contravention of the provisions of this Chapter.” (The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, page 8)
As legislators we have the chance to set Jamaica on a path of equal rights and restorative justice and pass laws that have equity, fairness, realism, compassion, and empathy for all our citizens, especially for the protection of our boys and girls. We should be prepared to have a national discussion about the contradictions in our laws regarding the definition of rape in Jamaica amend it once and for all.
Furthermore, guidelines for rape should by law include mandating a judge to consider longer sentences where there are “special aggravating circumstances” like the current case in St Ann with the little girl. Perhaps, judges should be empowered to give life sentences, plus order chemical castration where there are “special aggravating circumstances” or grant no considerations for time reduction for a guilty plea so long as there are “special aggravating circumstances”.
For your own sake download the Sexual Offences Act and read it. Then you will understand how, if not changed, we will continue to tolerate a society in which a husband can put a knife to his wife's throat or beat her into sexual submission without committing any criminal offence, leave our young boys unprotected from sexual predators, while criminalising consensual sex between adult males or, worse, encourage a perverted man to force a female child to give him oral sex or penetrate her anally whilst avoiding being charged with rape.
No more blockbuster speeches and visits to homes after the fact. This reality necessitates us being urgently honest with ourselves. If we choose not to, we will continue sleepwalking in a society where aggressive sexual abuse is normalised and violent threats pass for disagreement.
It is time we all wake up and smell the decay into which Jamaica's proud history of decency and mutual respect has plummeted.
Lisa Hanna is a Member of Parliament and People’s People’s National Party spokesperson on foreign affairs and foreign trade.
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