Article of the Week: Reform the Rape Provision in the Jamaica Sexual Offences Act

rape-1rape-help-stop-rape-34818631-900-675Rape-Incidents

Jamaica in many ways stays stagnant while the world moves forward. One of those ways is the country’s law as it pertains to rape. Jamaica arguably has one of the most outdated rape provisions in the English-Speaking Caribbean. Section 3 of the Jamaica Sexual Offences Act 2009 (JSOA) speaks specifically about rape.

The provision essentially defines rape as a man having sexual intercourse with a woman without her consent, knowing that she does not consent or recklessly not caring whether she consents. It goes on to say that the consent cannot be extorted by physical assault or threats or fear of physical assault to the complainant or to a third person. Consent also cannot be attained by false and fraudulent representation as to the nature of the act or identity of the offender.

The rape laws in other Caribbean states are similar to Jamaica’s rape provision except that they use the word ‘person’ rather than ‘man’ or ‘woman[1]’. By using the word ‘person’ instead of ‘man’ or ‘woman’ the provision is gender neutral. This means that a woman or man can be raped by another woman or man. Jamaica should emulate these Caribbean nations by replacing the word ‘man’ or ‘woman’ with ‘person’ thereby making the legislation gender neutral and non-discriminatory towards men. This allows for rape victims of all genders to seek redress under the law. Furthermore, it removes, or at the very least diminishes, the perpetuation of the stereotype of the man as the perpetrator and the woman as the victim.

Together with this change, the meaning of sexual intercourse would have to be more expansive. Presently section 2 of the JSOA defines sexual intercourse as the penetration of the vagina of one person by the penis of another person. A better definition for sexual intercourse would be the penetration of the victim’s anus or vagina using an object, the offender’s penis or other body part. With this wider meaning for sexual intercourse the law will not only recognise rape victims with vaginas but victims without vaginas. The law will also apply to rapists with and without penises.

The Jamaican rape-related laws need to be more comprehensive as it pertains to consent. Jamaica must follow Barbados and have a legal provision that asserts that consent cannot be obtained through the use of one’s position of authority or any kind of intimidation. Like Trinidad and Tobago’s legislation, Jamaica’s law should vitiate consent attained through unlawful detention. In addition the law ought to stipulate that an intoxicated person cannot consent.

Jamaica’s laws as it relates to rape have to be dragged into the 21st century. The rape provision ought to be made gender neutral and non-discriminatory to men by replacing the words ‘man’ and ‘woman’ with ‘person’. The definition of sexual intercourse must be more extensive. As it relates to consent the rape legislation of Jamaica should be more all-encompassing.

© Christopher Goldson 2015

Third Year Law Student

The Faculty of Law, UWI Mona

Contributor

The Publications Committee

The Mona Law Society

[1] Specifically Barbados, Trinidad and Tobago, and Guyana.

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Article of the Day: Senate-Gate The Gordon House of Horror: My Views on the Jamaican Senate Impasse

andrew_holness_2013_budgetAndrew-Holness001Tufton-and-williams_w304

Introduction

I know that many of us don’t fancy politics these days. It is perceived to be inefficient and filled to the brim with deceit, corruption, nepotism and narcissism. However, while you take time out of your busy schedule to pay this article your attention, it is necessary to bring you to that political discussion for a minute, as this discussion brings into account our constitutional law and its importance in our political life. This article will explore the current controversy regarding the Senators that were deposed, the new ones that were substituted, and a brief look at the constitutional law in general. So take a deep breath, grab a cup of your favourite beverage if you can, and read these words, which reflect my own thoughts and not those of the Mona Law Precedent, the Mona Law Society and the UWI Mona Faculty of Law.

The Facts In a Brief Summary

In February 2015, The Supreme Court ruled that Opposition Leader Andrew Holness acted unconstitutionally and unlawfully in creating pre-signed and undated resignation letters on all of his Opposition Senators and eventually dating two of them and submitting them to the Governor-General to effectively fire Arthur Williams and Dr. Christopher Tufton from the Senate. Dr. Tufton openly supported Audley Shaw when Mr. Shaw unsuccessfully challenged Holness for the leadership of the Jamaica Labour Party in 2013. Mr. Williams did not openly endorse any of the two men. After ousting those men from the Senate, Mr. Holness advised the Governor-General to appoint Dr. Nigel Clarke and Ruel Reid as Senators in their place. Mr. Holness, despite apologizing to the Tufton and Williams at a church service after the judgment was delivered, we have since learned that his attorneys have filed an appeal.

The Sanctity of the Senate

The Senate is not, in my estimation, the same as the House of Representatives. This statement is obvious on the face of it. But at a much deeper analysis of mine, the Senate is to be held at a much higher standard and, I dare say, in higher esteem than the House of Representatives. Let’s delve into this thesis for a while. The Constitution of Jamaica provides for the appointment of 21 Senators, 13 of which are to be appointed on the advice of the Prime Minister, and the remaining 8 on the advice of the Opposition Leader.

The House of Representatives is elected by the electorate and the number of members determined by the number of constituencies that are drawn. That makes the Senate more exclusive and much harder to get in. As a result of this exclusivity, the types of persons that have been appointed to the Jamaican Senate over the years have been known, for the most part, to be non-political beings. I recognize and concede that many of them have eventually developed the political bug and have used their positions in the Senate as a means to launch their political careers and run for elected seats in the House of Representatives.

There is nothing wrong with wanting to go further into political service. Even Dr. Tufton was one such person who left the Senate and joined the House of Representatives for one term. However, a majority of the persons that have been appointed to the Jamaican Senate have been non-political (at the start, at least) and have been appointed to the Senate because of their prowess in their particular career field, be it business, law, education and academia, etc.

The Senate is normally known to be a review chamber for the pieces of legislation that come through the House before being sent to the Governor-General for his assent. In addition to being the review chamber, Senators are also known for providing more intellectual analysis to the laws and to use such acumen in their chosen fields to guide their discussions. From my standpoint, I am pleased generally with the conduct of our Senate. They are much calmer and more analytical in their deliberations and they are much slower to be angered because of promoting their party’s position on the issue at hand unlike their Honourable colleagues in the House of Representatives.

Very rarely has the Senate really erupted because of a strong difference of views on a particular issue, whereas one cannot pay a visit to Gordon House for a House sitting without considering bringing a pair of earplugs. It is of interest to note that between 1983 and 1989, when the People’s National Party was not represented in Parliament and there was no Leader of the Opposition, Prime Minister Edward Seaga appointed 8 “independent” Senators to provide the balance that was needed at the time, as a means of providing that same intellectual discussion that the Senate was renowned for at that time.

Therefore, it is my view that the reasonable person would view anything that would hinder the Senate in its function or anything that taints the sanctity of the Upper House as undesirable and unbecoming. The Court has gone even further and has interpreted that it is also unconstitutional based on the legal reasons given in its judgment.

The Politics of Letter Writing: Holness’ Folly Punished

Mr. Holness has put forward in his defence that he did not intend to use the letters to resign the Senators based on the leadership race. Instead, he claimed that he composed these letters to be used against the Senators in the event that any of these Senators should break with party lines to vote with the government side to adopt the Caribbean Court of Justice as Jamaica’s Final Appellate Court.

The Bills are now before Parliament. Even in spite of the Jamaica Labour Party’s position that the acceptance of the CCJ can only be done through a referendum (although the constitution does not require it for lack of deep entrenchment), do such letters make appropriate sense to be used at all? I cannot possibly imagine that one could be threatened, let alone fired from the Senate, the Upper House, for such pronounced, politically motivated reasons.

What Mr. Holness has done was wrong. His actions have tainted the sanctity of the Senate and his actions have displayed a great deal of recklessness and political maladministration on his part. It has impaired the judgment that Senators ought to have in dealing with the issues of national importance from an intellectual perspective.

The Legal Effect: Standing of Senators

It is unfortunate that the entire saga had to end this way, but based on what the Court has said, the letters and their usage was unconstitutional, I believe that Williams and Tufton are still Senators. They did not resign. It is rather unfortunate to see Nigel Clarke and Ruel Reid go like this. Those men proved to me what the ideal Jamaican Senate ought to be. Their contributions to the discussions in the Senate illustrated perfectly the kind of intellectual acumen that the Senate is known for and should continue to embrace in the future.

Conclusion

There’s nothing really more to add at this point. I wish I could, and perhaps I will in a Precedent follow-up, but being that Mr. Holness has filed an appeal, the matter is once again sub judice.

However, it has allowed our Constitutional law to stand more tests in the Court, which I am surely grateful for. It is my hope that the interests of the Jamaican people, and not Jamaican politics, will be served.

©Markel A.O. Virgo 2015

Mona Law Precedent Contributor

MLS Publications Committee Member

February in Review

The month of February for the Faculty and the University at large was stocked with many events and challenges.

This February culminated with the celebration of Black History Month which appeared to be more of a whisper instead of a triumphant shout. Although some events were held to celebrate the impact of prominent Black heroes in our Afro-Caribbean existence, one cannot help but question if today’s youth find the relevance in it all.

The University’s Annual Homecoming week and Research Days was also held and promised to be a grand event with Justice Patrick Robinson, the newly elected judge on the International Court of Justice, being named as the 2015 honouree for the Homecoming celebrations[1]. He held a special audience with members of the Faculty of Law where we were able to pick his brain about issues relevant to the diaspora and the wider world along with his experiences working at The Hague[2].

Homecoming week, in particular the Homecoming parade was hampered by an attack of gender-based violence on the campus earlier in that week. This led to the cancellation of the parade and Integration Thursday from fear that large gatherings may result in spats of violence.

The noteworthy Homecoming Week was followed by the lively MLS Law Week (February 15-21). This included classic events such as legal attire day, law sports day and law outreach along with new events such as Legal Snapshot Day. Law Week culminated with the annual staging of the Mr and Miss Law: Laws of Attraction Pageant. Thirteen contestants vied for the title of Mr and Miss Law 2015, with Mikael Lorne and Chantelle Biersay taking the top spots.

All these events and incidents have aided in creating a tapestry in our legal journey that will not soon be forgotten.

©MLS Publications Committee 2015

[1] Homecoming Week and Research Days being held February 8-15 and 9-11 respectively.

[2] Justice Robinson is also the father of two known legal luminaries, namely Tracy Robinson lecturer at the Faculty of Law and Chairman at the IACHR and Julian Robinson MP of South Eastern St. Andrew.

The Tivoli Enquiry – Human Rights, Politics, National Security and the Search for One Man

57116tivoli_800x600_flat_whiteWK Enquiry

Introduction

I seek your forgiveness for not waiting until the New Year (or at least until after exams) to put pen to paper, but I just could not contain myself in my thoughts. However, given the issue of which I am about to write, I’m sure you will find it easy to forgive me and my youthful legal exuberance; especially around an issue as exhilarating as this. This article will assess the Tivoli Enquiry up to the publication date of this article and how I believe the proceedings may turn out based on how they have started. As I give this introduction, I also hasten to give a disclaimer that what I am about to write are my own views and are not necessarily those of the Mona Law Precedent, the Mona Law Society or the UWI Mona Faculty of Law.

 

“Wah dis fah?” The Purposes of this Commission of Enquiry

Pursuant to Section 2 of the Commissions of Enquiry Act, His Excellency the Governor-General has convened a Commission of Enquiry to enquire into, inter alia, the actions of the State and its agents in Tivoli Gardens and neighbouring communities in West Kingston during its operation there in May 2010. I refer you specifically to a few of the Terms of Reference here[1]:

  1. To enquire into:

(b) the conduct of operations by the security forces of Jamaica in Tivoli Gardens and

related areas during the said State of Emergency in the month of May 2010;

(h) whether, and if so under what circumstances, civilians, police officers and soldiers

of the Jamaica Defence Force were shot and killed or injured during May 2010 in

connection with the security forces seeking to effect the arrest of Christopher

“Dudus” Coke on a provisional warrant in extradition proceedings;

(i) the circumstances under which, and by whom, private property was damaged or

destroyed during or around the period of the State of Emergency declared in May

2010;

(j) whether the rights of any person or persons were violated in any of the affected or

related communities by either law enforcement officers or by anyone else and, if

so, whose rights were violated, and the manner and extent of such violations, and

by whom such violations were perpetrated;

(k) the chain of command in relation to the decisions concerning the operations by the

security forces in Tivoli Gardens and related areas during May 2010, and the

respective responsibilities of each person in that chain of command;

(l) whether any dereliction of duty or unlawful conduct is attributable to any person or

persons in that chain of command in connection with the decisions concerning or

the execution of the operations by the security forces in Tivoli Gardens and related

areas during May 2010 and, if so, to which person or persons, and the nature and

extent of such dereliction of duty or unlawful conduct.

The Commissioners

 

The Commissioners who have been selected for this Enquiry are Sir David Simmons, former Chief Justice and Attorney-General of Barbados, The Hon. Mrs. Justice Hazel Harris, retired Justice of Appeal and Professor Anthony Harriott, one of our outstanding academics from the Faculty of Social Sciences here at UWI Mona. Notwithstanding the drama that enfolded during the initial appointment of Miss Velma Hylton QC, and the political infighting that eventually led her to walk away from the enquiry, I believe that there exists a well-qualified, impartial and competent team of Commissioners.

Certainly, I have been impressed with Sir David’s leadership of the Commission since the proceedings have begun. He has managed, in my estimation, to be level-headed and articulate, yet maintain a stern grip over his control of the proceedings. We saw it firsthand in the first week of the Enquiry where he had no qualms in ejecting the boisterous Lloyd D’Aguilar from the enquiry for his misbehaviour during the first two days of the enquiry and for repeatedly calling him “a political hack”.

I will talk about him and his attitude a little later on in this piece.

 

The Dealings Thus Far

 

From the beginning of the Enquiry, we have since heard the testimonies of several witnesses who are residents of West Kingston, many of which have been delivered in what many would call a sort of classical Jamaican style, with all the drama and life that accompanies it. These witnesses, as you can well imagine, are working class and poor people who have lived entire lives of living just to make ends meet, to meet the cap to survive in the modern inner city society. Certainly, the experiences they went through during the incursion have left on them lingering scars that will be worn by them for a lifetime.

We see where the security forces have come well prepared, with a slew of some of Jamaica’s finest and most talked about attorneys, many of whom have become household names in recent years: Peter Champagnie, Deborah Martin, Linton Gordon, Everton Dewar to name a few. We have also seen where the political arms have assembled their legal teams as well, as we have so far seen Senator Alexander Williams step in for the Jamaica Labour Party and where we will see in the new year Ransford Braham, former Attorney-General, represent former Prime Minister Bruce Golding.

We go back to the West Kingston residents. From whence cometh their legal aid? Their legal aid cometh from Ras Miguel Lorne (who is offering his services pro bono) and an advocacy group called The Tivoli Committee, convened and chaired by Mr. Lloyd D’Aguilar.

Now, Mr. D’Aguilar has been quite a character since the idea of the enquiry was conceptualized. He has been very vocal about the plight of the Tivoli residents and the need for them to be compensated for injuries, loss of belongings and loss of life. On the first day of the Enquiry, Sir David was gracious in allowing Mr. D’Aguilar power to act as an attorney in the absence of Mr. Lorne, the rightful attorney. However, he took his allowance a bit too far and allowed himself to get carried away in the heat of the moment, where, even at points in the course of cross-examinations, he was encouraging witnesses not to answer any further questions from attorneys. I believe that this was contemptuous behavior on his part and I am of the view that it did warrant him to be ejected from the enquiry with no chance of readmission. In as much as Mr. D’Aguilar may have the best of intentions to help the residents, his aggression was uncalled for, unprofessional, and definitely contemptuous. Had he been allowed to remain, I posit that he would have caused collateral damage to himself and the Tivoli residents at large. Those lawyers would have already begun to eat them alive.

Another thing that may work to the downfall of the Tivoli residents is this: many of them have been terribly aggressive in the tone of their testimonies. Their anger, to many observers, seems to be a sign of what the Security Forces are trying to argue: that their actions were justified because the community at large refused to co-operate with them in their search for Dudus.

There are some who would go further to say that the citizens were helping criminal elements to shield Dudus from law enforcement in West Kingston and that they should be held responsible for their actions in obstructing the security forces from executing a warrant for the extradition.

The cross-examinations have served to heighten that tension and raise the aggression in order to highlight the inconsistencies. To me, that is what the lawyers are looking for: the aggression that may obfuscate whatever truth there is behind their testimony and whether such aggression has worked in their favour.

 

Cross-Examination: Too harsh?

 

Now, it has been argued by many that the cross-examinations being done by witnesses is being done in a manner that is too harsh and demeaning to the witnesses. As a non-lawyer, it is rather easy to slip into that category and agree with the claims that cross-examination by the attorneys is too harsh. Out of this claim are other beliefs that the Enquiry is another grandstanding for lawyers to show off their prowess and style over each other while belittling the “poor, defenceless residents” of West Kingston.

However, I believe that the words of Mr. Linton Gordon, one of the attorneys representing the Jamaica Defence Force, make the better claim, and I agree with them wholeheartedly. As the learned counsel has rightly said, ‘the purpose of cross-examination is to determine the veracity of the witness’ testimony and to detect any and all inconsistencies therein’.

We must remember that these enquiries, though not as formal as Courts and court sittings, are a legal tribunal where lawyers are going to be lawyers. The witnesses, as well as those who disagree with the cross-examinations will just have to learn that these lawyers are doing their jobs: they HAVE to probe the statements, break them apart and analyze them for any inconsistencies that they can use to render the statements false or misleading.

What I advise the witnesses to do in this Enquiry is simple, yet controversial: tell the truth, and make sure that in your conveyance of the truth, be calm and be less aggressive. As far as these proceedings have gone, the aggression of the civilian witnesses has only seemed to help the attorneys for the security forces fulfil their objective as the aggression has allowed many of these testimonies to become fraught with perceived inconsistencies.

 

What to Come

As the Enquiry progresses, it is my hope that truth and justice will be sought. Beneath the drama, the lawyers and their style, the politics, the pain and the hurt, the blood and gore, there must be the pursuit of justice. The pursuit of justice may not be in favour of the residents of West Kingston, as many watching would like to see it. We just have to accept that. Whichever side you are on, watch the Enquiry for the facts and arrive at a rational and thought out conclusion.

The flashiness is vanity. The truth is the substance.

 

©Markel Virgo

Second Year Law Student

Faculty of Law, UWI Mona

Contributor, Mona Law Precedent

[1] http://jis.gov.jm/media/TOR-for-West-Kingston-COE-2014.pdf

[Re-post] Cavehill Corner: The Transition between Shores, Life of a Cavehill Student

official-jamaica-flagbarbados-flagforeign exchange student

Name of Student: Romane Duncan

Year of Study: Second

Faculty: Law

Campus: University of the West Indies, Cavehill

  1. What’s the first thing you thought when you arrived in BIM[1]?

Uhm…why does this this place look exactly like Jamaica; the Caribbean is so similar!

  1. Tell me about your biggest culture shock.

So, its not that the customer service is bad, but it’s slow! So I think it’s just a cultural thing, we Jamaicans are probably too impatient! Definitely learning to take a chill pill!

  1. What’s the main difference between Cave Hill/Barbados and Mona/Jamaica? You

Mona is a 24hrs hub, full of life and food at any time of day (Nardo’s), Cave Hill calms after 8pm and if you want food, you know it’s a walk to the beloved Esso!

  1. The weather in BIM is beautiful! It changes more than chameleon’s skin. You always need a jacket as it rains for 1 minute periods! Keeping the temperature cool! It moves from one extreme to the next in seconds though.
  2. Law in BIM is great actually. I mean, I feel like my lecturers are equipped to deliver the content but these lecturers may mark harder. And the schedule is way more stable than at Mona. Cancelled classes are seldom.
  3. What are the main differences between courses taught at Cave Hill and those taught at Mona?

POLICY. As a proud Matthewsian (Hi Miss), I pride myself in seeking the policy behind the law, it’s not that important here!

  1. Describe your weirdest course/lecturer/tutor.

Sampson Owusu. He is just the best, he has a Ghanan accent which adds a new dimension to the technical area of Real Property. Just hearing him say ‘Ray-al Prropaaahtee’, you are interested and want to learn more. And who can doubt him when he was quoted by the Privy Council!

  1. How does it feel to be the last Jamaican group on the Cave Hill-Mona law programme?

I feel like I am being afforded the best opportunity! This idea of Caribbean integration is at the ambit of this programme and to be the last group saddens me. I feel like closing the programme sets us one step backward in achieving a unified Caribbean. Oh and plus every single, deggeh deggeh island is represented here, the true idea of a melting pot, bet yuh neva eat fig pie!!!


  1. Describe hall life. Does it differ greatly from hall life at Mona?

Uhm…it depends on the hall you live on! So lived on Rex at Mona (mi say a who dem??? Rex Reeeex Nettleford!) where I am used to my own space. It is very similar to Frank Worrel here! But here, I am a Sherlockite(All hail King Fattercock!), it has an amazing family life and definitely where the hype is at! Oh and in the Hall’s battle we destroyed the pussycats of Worrel! So, it’s a change for me (but it’s based on where I was).

  1. How involved are you in on campus activities?

Well, I won both the Inter-Island Debate and Public Speaking Competitions for Jamaica!!! Hip hip? I am an International Mooter going to Rio de Janeiro 2015! And I am an honorary Antiguan! Oh and I act every now and again! #caribbeannational #reallyinvolved

  1. Would you say you’ve become more patriotic since being in BIM?

Oh Gosh! A me say back a yahd! Yes!!! We rep Jamaica though! I get to be an ambassador for the great Nanny as well as for the rushing waters of Dunns River Falls! Blue Drawz?

  1. Do you seize all opportunity to promote Jamaican culture? Is it well received?

Every single one! I have to let them know we are not as violent as we seem to be! That we are really a hospitable people who love farrinas! And the foooooood! Yes they love it! We love it! Yup Jamaica body tun up! Yeah and everybody says Jamaican bad words hoping I’ll be impressed! (I’m not).

  1. Do you miss anything about Mona? If yes, what?

The life! The buzz! My friends! My PLAY foundation! 434 Rex Nettleford Hall! The random gazebos with electricity and WiFi! The 24 hrs library! The law faculty! On time taxi services!!! And the food outlets on campus that are affordable! I now pause to appreciate how convenient it is to buy food at Mona.

  1. How often do you feel homesick? What do you do to rid yourself of the feeling?

Not very often, but Bajan food is an acquired taste (I haven’t acquired itL). So, it becomes really difficult when you want some serious Sunday dinner or our Devon House I-scream delicacy or a hot patty from Tastees…but other than crying (lol), I skype a friend, eat a spoon of Jamaican Chocolate mix and play some yardie music! Nb. Don’t judge me! Mi awrite!

  1. If a Mona student decides to spend a semester at Cave Hill, what is one thing s/he must absolutely do in BIM?

Go on a Catamaran cruise! It is amazing! The country is beautiful and clean and you won’t be certain if you are vacationing or studying! I mean Mona is not near the beach so it a whole new experience! Turn down for what?

Shereese Graham

Second Year Law Student,

Faculty of Law, UWI Mona

Contributor, Mona Law Precedent

Member, Publications Committee

©Shereese Graham

[1] Nickname for Barbados

*This was re-posted (with apologies) as the author’s name (Shereese Graham) was spelled incorrectly.

Creative Corner: Can I be this?- Cannabis

Hemp-Fuzion-Hair-Conditionermarijuana-legalization-news1-750x739

Roll mi, squeeze mi, caress me, and undress mi,

Mi love dress inna white, but brown work tuh,

If yu need a high, check out di flights

Wedda yu like it, slow, fast, medium, even if yu shy

Jus’ waan kno se yu ready fi di ride

Some love fi put me inna a pipe

One ting maah tell yu, look out fi di stripes

Stars, cymbals, music nice,

Wateva yu waan mi be, am di choice,

I can be dis, I can be dat

Hol’ on de, mek mi show yu a vibes

Estás listo? A Spanish dat

Êtes-vous prêt ? French Dat! I can be your wildest dream,

den nuh English dat Mi nuh major inna di minor, mi nuh b-flat

Check out me roots, a Zion dat Mi have nuff name,

Mi have nuff character Weed, Cannabis, Ganja, Marijuana, 50 bag, 1

00 bag, 2 ounce, one poun’

Mi open doors, mi close yeye lids Me sleep inna sheet, an’ mi mek yu waan an’ skid

Check me out,me a guh mek history Doctors, Scientists, Prime Ministers se mi is a mystery

Me tell yu mi can be any ting yu waan’ De ya wait pan mi Attorney, fi set me up neat and straight

Suh mi can de every weh, even pan u lawn,

Nuh worry bout Baby lan’ a knock pan yu gate Look how long unnu did de ya wait

Mi tell yu se me bad, me tell yu se me great,

Mi have nuff fans, and whole heap a hate

One ting mi a tell yu before me evacuate, If yu waan’ fly; check mi at a later date!!!!

Saskia Barton

Second Year Law Student

Faculty of Law, UWI Mona

Contributor, Mona Law Precedent

Member, Publications Committee

© Saskia Barton, 2014

Amendment of the Law Regarding the Age of Consent in Jamaica

sex-education-for-teens

If you have been watching the news in recent times, you would have seen that one of the hot topic debates has been the issue of whether or not the age of consent for sexual activity in Jamaica should be raised[1].

Our current authority for this law is found in section 4 (3) (b) of the Sexual Offences Act which states that any of the sexual acts specified in the statute would be considered illegal once carried out on anyone below the age of 16 years[2]. Interestingly, one could consider this statue contradictory given the fact that within its opening section the SOA defines a “child” as anyone under the age of 18 years[3].

However, before we descend into the arena of debate which will most likely be fuelled by our own views of morality and personal idealisms, we must examine why this has become an issue yet again and what it would possibly mean legally and socially if this law was amended.

The Age of Consent issue

The proposal for raising the age of consent was brought before parliament by the head of the Office of the Children’s Registry, Diahnn Gordon-Harrison who felt that this would be the best solution to protect the most vulnerable members of our society; our children. She gave a number of reasons that the passing of this law would be beneficial to society, namely:

  1. The current state of the law does not allow for many of the older offenders who take advantage of the younger members of society to be criminalised as they are relieved of liability once the 16 year old says that they have consented.
  2. The amendment would give these young members of society (particularly 16 year old females) the opportunity to abstain for longer periods of time as the law could be used as a tool to ward off those who would want to tempt them into having sex.
  3. This could redound into reducing the amount of teenage pregnancies which tends to show a large increase once young girls become 16.
  4. Additionally, a caveat would be put in place for those who have sex underage with other teenagers, that is, the ‘close in age law’.

These all seem like valid considerations as we cannot ignore the state of our society today. The Jamaican landscape is riddled with many teenage mothers who were forced to drop out of school and postpone their education due to teenage pregnancies. This has resulted in greater stress on the government as they have to act to stymie the possible fallout of this vulnerable group by putting certain catchments in place like the PATH programme.

It is important to note that this initiative does not only benefit teenage mothers and would not be likely to stop if this occurrence was reduced. However, such a large vulnerable group would have an impact on the amount of money that the government would have to spend to assist them. There is also additional proof that once young ladies become mothers as teenagers, they are likely to become pregnant on multiple occasions without any more support from the fathers of their children.

With all this considered, why is Parliament even hesitating to amend the law?

Legal Implications

Before such a law is amended, we must consider what effect that this alteration will have on the legal landscape. Firstly, once the law is amended it may result in the criminalisation of a greater cross-section of individuals. We cannot deny that there is a high level of sexual activity within our society, particularly amongst our youth. It was for this reason that Mrs Gordon-Harrison suggested that the law allows the ‘close in age’ defence that gives those who have sex with a youth who would be considered legally underage but are themselves close to the age of the offender.

Despite this fact, there are many in the society who have sex with youth who are far from their age group, therefore, denying them this defence. This means that these individuals would have to be charged, tried and sentenced in an already oversaturated justice system that already lacks the resources to deal with the cases that are currently on the books. The current state of our economy does not help to satiate this issue either. Therefore, the government would have to manage to find major resources to deal with this issue or else we would have a society with more individuals falling into to the criminal category never actually being able to be prosecuted.

Secondly, the entire law as it pertains to sex offenders would have to be given more teeth to at least deter the lecherous in our society who are hell-bent on terrorizing our youth from committing these crimes. This was the opinion of ‘The Star’ contributor Leighton Levy on this amendment to the law. He believed that this predatory behaviour where older men would prey on young girls would never end, even with the amendment to the law, if it isn’t given more ‘teeth’. This is a sentiment I personally agree with. Soft jail time is not enough to prevent men, who probably would have been doing these acts for years, from receiving sexual gratification from these young girls[4]. Though I wouldn’t suggest resulting to any draconian methods I believe that the law would need to have greater penalties to really deter these individuals[5].

 

Social Implications

Parliament would also have to consider the social landscape before amending the law to ensure that the provisions adequately fit the current temperature of society. Thus, we are brought to the controversial law and morality argument that has been happening from time immemorial. To paraphrase the Jamaica Constitution, section 49 states that Parliament is to make laws for the order and good governance of society. This, in the minds of many, would mean that Parliament is to pass laws that would uplift the moral standings of society; making the amendment to this law a no brainer. It is important to note that this age was raised in 1988 for similar reasons as was posited today.

However, one cannot assume that their morality is of the same nature as that of the other members of society. That is to say that though many, especially of a Christian persuasion, would believe that teenagers having sex is immoral and against God’s wishes; there are many who believe that this behaviour is normal and tantamount to growing up and maturing. It is easy to sit on one’s high horse of morality and look down on those who fall below your standard. It is easy to think that your opinion will bring the desired result to everyone who follows the law, but social reality tells us that this is simply not true.

For many even if the law is changed their attitudes and actions would remain the same. This is due to the fact that their behaviour was never influenced by the law but by their environment. Most youth are encouraged to begin sexual experimentation by their relatives and friends who think that this is the true sign of maturity. The majority of music produced by members of our society basically promotes sex and violence as the few worthwhile pastimes of our generation. Additionally, our sexual appetite is awakened early just by television advertisements and shows. We are a society saturated with sex and not with law.

Another common opinion espoused by many is that the increase in the age of consent will give youth, particularly girls the opportunity to pursue their education and qualify themselves. This is especially since 16 is the general age that most students do CXC which is the main requirement for qualifying for University.  However, what many don’t realise is that teenage girls may even pursue older men to help them finance their education.

It is no secret that Jamaica is not in the best socio-economic standing, thus making it more difficult for parents to finance their education. Many young people are therefore, encouraged to seek help from others who will use sex as their accepted payment for financial support. This can mean that the amendment of the law may have no effect on these transactional relationships but to criminalise the men who provide these young girls with money[6]. Thus, it can further deter these girls and their families from reporting these predators. This may be counterintuitive to what the law would desire.

Lastly, many in our society do not take the law seriously. They would therefore, have to be re-educated about the importance and sovereignty of the law and how it serves to protect us. Additionally, the public would have to be re-educated about the importance of childhood and the sanctity of this stage. This could help parents to be more ardent in protecting their children and help this stage to be one of the most productive and protected stage of their lives.

My Opinion

It is truly my opinion that the age of consent should be raised as I believe that it is the delay in having sex that may help youth in a heavily saturated society to keep their focus and continue to move forward and pursue higher education and specialisation. I also have witnessed the stalling effect that teenage sex and subsequent pregnancy can have on one’s life.

Growing up I saw many girls who I respect and who had major career ambitions have to put a pause their journey to support the babies that they have brought into the world. The fact is that early sex, without proper education has a negative impact on our youth and the society at large.

However, before this law will have real effect, the society has to be re-educated about the importance of abstinence and safe sex, the penalties for the breach of this law will have to become more punitive and the legal system will have to be financed to ensure that all these cases can be tried and sentenced in a timely manner. Though this may take time, I believe that it can be done and that our society will experience great benefits from this.

Camilla Parris-Campbell

Second Year Student

Faculty of Law, UWI Mona

Contributor, Mona Law Precedent

Co-Chair, Publications Committee

©C Parris-Campbell

[1] Along with the purchasing of the ‘Outameni’ facilities by the NHT and the brewing conflict between the DPP and head of INDECOM

[2] From henceforth referred to as the SOA

[3] a point that would be expanded later

[4] And often times’ boys

[5] No matter how deserved they are

[6] However immorally.