Editor’s Corner: To Have and to Hold, For Consent or Rape…Marital Rape in Jamaica

4-15-Rape-Lawmarital rape

Do you take this man to be your lawfully wedded husband, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, [for consent or rape] in sickness and health, to love and to cherish, till death do you part?

If you were paying attention to the recital of these vows above, you would notice a vow not traditionally promised on one’s wedding day. However, this has been an ever present reality for many women after they sign their marriage certificate.

Through the opinions of Sir Matthew Hale in 1800, marital rape has been seen as a redundant principle as “…the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”  Due to this archaic principle, many wives have suffered in silence due to being robbed of their sexual autonomy once signing their marriage certificate.

This is supported by Jamaican legislation in section 5 of the Sexual Offences Act which prescribes that there can be no marital rape unless it occurs under five specific circumstances:

  1. Spouses must be separated and living separately and apart;
  2. Where there is a separation agreement between the two spouses;
  3. Where either party has initiated divorce proceedings;
  4. Where an order has been made against the husband for the protection of his wife;
  5. Where the husband knows that he is suffering from a sexually transmitted infection (STI);

This therefore means that the only way for a wife to bring a claim of rape against her husband is if the marriage has all but deteriorated or if he is a known philanderer who has contracted an STI and does nothing to cure it. Surely this cannot be 2014! We live in a time where a woman’s sexual rights has now been clearly defined through law and society and sexual rights are no longer a sensational issue. Are you telling me that the law would allow marriage to become an avenue of sexual exploitation against women?

Do not misunderstand me. I do believe in the sanctity and relevance of marriage in today’s society. It may never be seen as obsolete as it serves a beneficial purpose for spouses. However, the fact that a woman could sign away her rights of sexual autonomy and her freedom to refuse sexual intercourse goes against equality and the institution of marriage. Generally, a woman would not willingly choose to be sexually exploited upon marriage to the love of her life.

British courts regarded this in 1992 and in R v R, they rendered void the doctrine that a woman could not be raped in the confines of a marriage. Jamaica, by this time, had ratified the ‘classical’ belief through legislation. In 2009, there was a glimmer of hope. The Sexual Offences Act was under revision and the chance to adapt the legislation to common law position on marital rape became a possibility. The act was updated to include that men and women who conducted sexual offences against children should be criminalized but marital rape was evidently excluded from the revision.

On October 16, 2014, the Sistren Theatre Collective sought to rectify this gross wrong at a joint select committee reviewing the Sexual Offences Act. Although their view was shared by the Justice Minister Mark Golding, Senator Lambert Brown dissented with his counterparts. Believing that the law would invade the privacy of a matrimonial union, he posited that changing the tenets under which marital rape will occur would radically alter the foundation of marriage. He went further to add that a husbands’ doubt of consent from his wife may prompt him to engage in sexual intercourse where consent is ‘sure’. Senator Delroy Chuck concurred that trying marital rape will bring to the fore intimate information about the union. This, he believes, will make an already broken marriage irreparable.

Those concepts posited have been refuted through law and practice. As expressed by Litrow Hickson, a member of the Sistren Theatre Collective, an act practised in the privacy of ones’ home does not negate its criminality (such as Domestic Violence). Additionally, consent is a necessity regardless of whether intercourse is being utilized for economic gain. Bringing a case of rape before the court is already an invasion of privacy as women have had to place their entire sexual history and interactions on the stand for excessive scrutiny. However, many women still come forward knowing that risk as they value their sexual autonomy. Married women should not be muzzled and should have their day before court should they want it.

The UN Committee on the Elimination of Discrimination Against Women posits that gender-based violence is an act of discrimination and stymies gender equality. Allowing for marital rape to continue will also cause the women of tomorrow to apprehend fear when they consider the limitation of their sexual autonomy and equality in marriage.

Even if the law is subsequently revised and adapts the common law position of R v R, the sociological impact of centuries of gender bias in marriage will still have to be reformed. The Girl Declaration, heralded by the Girl Engagement Advisory Board, is one such initiative that seeks to remove stigma against girls and women socially, economically and through education and health rights. Changing the law, along with using this initiative as a tool will help to change societies’ view of women’s sexual autonomy in marriage and establish the truth that RAPE IS RAPE, regardless of the situation in which a woman may find herself.

Christal Parris-Campbell

Editor-in-Chief, Mona Law Precedent

Publications Chair, Mona Law Society

Girl Engagement Advisory Board Member

Second Year Law Student, Faculty of Law UWI, Mona

© CP-C 2014

Creative Corner: Deep Waters

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Deep waters as am I. I close my eyes and picture heaven as if I’m about to die…..

Each time I come up to gasp for air,

 My head sinks deeper and deeper…. Deep waters, surrounding me, no way out, no way to flee..

 I try my best to get some space, I’m trying to find a happy place.

 No one knows the sadness I bear, no one sees the love I have to share.

I’m in too deep, deep waters as if I’m about to drown, each time I remember I can’t swim, I go deeper down…

Deep waters as am I. I close my eyes and picture heaven as if I’m about to die…..
I feel as if no one can be of any aid,

 I question my existence and why I was made. I try to regain some strength to see the good in this all, I try my best to trust no one, just in case I fall.

In these deep waters, one can never be too sure, one seeks to find the shore.

 Deep waters, sinking deep, no longer floating away in an abyss.

 Deep waters, mistreated, used, torn dismissed.. Deep waters as am I. I close my eyes and picture heaven as if I’m about to die…..

Saskia Barton

Second Year Law Student

Creative Corner: For My Ex (UWI Version) 2014

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Welcome to TVI, Television Irvine

(Just look at sus now now now…)

The views expressed on this the fifth show of All Triangles

Aren’t necessarily the views of TVI.

5 Today’s guest is Miss Bendi Phillips

One of Jamrock’s prettiest woman

Who ago share wid us how she did love off a Chancellor man

She did jus reach UWI and come thru back gate

Har mum was Downtown so she did haffi wait

10 Poor she nuh know campus yet walking she choose

Wen she reach KFC, she start drink a bag juice

She did feel alright as she quench har thirst

Til she tun round likkle and spot di yellow shirt

All weh she hear from Kim did clear in har vision

15 Bout di man dem a UWI weh eva rep di lion

She blink two time den swing har arm like Maurice Smith

Di poor bag juice land near Mona School of Business

She look pan him but him neva smile or laugh

Him only did a stare pan har Remi weh knockoff

20 Poor Bendi nuh know how fi look manShe jump up quick and stretch out har hand

Oh na na what’s ma name?

I mean what’s yuh name, what’s yuh name?

Di man push out him chest and start fi bluff

25 Den sehh, “Dem call me Mr Ruff It Up, dem call me Mr Ruff It Up!”

Har yeye dem bright up same same time

And soon she jus start fi move har hips and wine

Jus as she ago talk, she hear har phone a ring

Har mada a call har fi come collect di ting

30 Ruff It Up ask, “Can you blow my whistle baby, whistle baby?”

She fool so till she sehh, “Here’s my number so call me Bendi…”

Di semester half and tings start look bright fi dem

Ruff It Up and Bendi turn boy an girl fren

Dem spend days togetha and mek all sort a plan

35 Dem go Sovereign and Deli and dung a Students Union

Dem go few parties, drink Smirnoff and all a dat

DJ play some hype songs like

“All I do is win, win, win no matter what

Got money on mind, I can never get enough

40 And every time I step up in the building

Everybody hands go up…”Party done and Bendi a search fi him

She walk round til she find him near di gym

A talk to a girl pan him Samsung phone

45 Bout, “Just hold on, I’m coming home!”

Bendi did upset so she slap him in him belly

And sehh, “Won’t you let me be your one and only?”

Ruff It Up upset so him grab on pan har hand

And sehh, “A so mi tan, a so mi tan, a so mi tan

50 Do mi owna ting and mi have a bag a gal!”

“But mi woulda cook fi yuh, wash fi yuh

Mek up yuh bed and clean yuh room fi yuh…”

“Baby mi woulda deh wid yuh but guess wah it nuh healthy

Because mi know sehh it wouldn’t help mi…”

55 “But when a man love a woman and a woman love a man a Jah Jah blessings

Like I love you and you love me a Jah Jah blessings”

“On to the next one, on to the next one…”

“Besides the good ones go, good ones go

So you should go, you should go”

60 Bendi bawl dung UWI fi di rest a di semester

She bawl dung di library and di lecture theatreYuh did really expect har fi start feel better

When har lion man left har fi a girl pan Taylor?

Since di new year, she pass him a assembly hall

65 Inna di same yellow shirt, standing brave and tall

Him sehh him buck a gal from UTech weh a study business

Bendi a pass and she betta watch out fi dis

She woulda bawl likkle more except har yeye dem did dry

So she hiss har teeth and hurry up pass by

70 She stop ova Juici and buy herself a cheese patty

Den tell herself sehh di chancellor man a real scabby

She decide fi write one last goodbye note to him

So she tek a likkle bite as she reach fi har pen

Dear Mr Ruff It Up is what she write first

75 If yuh neva know, mi a di girl inna di tight up skirt

Mi did drunk in love and a give yuh all of me

And dis love was taking all of ma energy

Mi did like yuh beat fast and yuh bass down low

But now yuh just somebody that I used to know

80 And mi shoulda know betta than fi fall

Fi yuh wen u come in like a wrecking ball

Sometimes love come around and it knock yuh down

And sometimes it all comes tumbling down

Wen one drop a kotch and six thirty a die

85 We haffi get up and try try try

Up all night to get lucky did in mi mind

But right now mi really hate dem blurred lines

Mi bust di windows out yuh car using a stick

But right now, I don’t care, I love it

90 Gwaan show off yuhself outta shoppers den

Cuz a me, Bendi, mek yuh locked outta heaven

A me mek yuh feel like yuh in a red light district

Now yuh a cheat and a sehh yuh luv this shit

Pull up yuh pants and put it pan yuh waist

95 Stop mek di Rexan girl a fog up di place

Think mi nuh hear di Towers girl ova Dynamite

A ask yuh if yuh not coming ova tonight?

Mi sehh amen, mi get di lion outta mi life

But mi a roar like Katy and mi weak like Keisha White

100 Mi kinda believe wen yuh say she’s just a friend

Cuz sometimes yuh haffi lose to win again

So mi jus a roll inna di deep and do a pretty girl rock

Cuz by mid semester, yuh know yuh haffi come back

Written for Imani Maxwell’s Talent Piece in Miss Irvinia 2014

Sherese Graham

Second Year Law Student

News and Issues: Mario Deane – The Last Stand on Ganja and Inmate Abuse in Jamaica

Section 13(6) of the Constitution of Jamaica clearly enunciates that “No person shall be subject to torture or inhuman and degrading punishment or other treatment”.  Unfortunately, for a poor young man by the name of Mario Deane, the conditions he experienced in police custody ended in his demise.

On August 6, 2014, while Jamaicans at home and abroad were celebrating 52 years of Political Independence, a young man by the name of Mario Deane met his untimely and undeserved demise. Deane, a 31 year old construction worker, was brutally beaten at the Barnett Street Police Station in Montego Bay three days earlier. He had been arrested for the possession of a spliff of ganja.

Mr. Deane’s death has, naturally, outraged many Jamaicans, and this particular beating death has attracted international media attention for the issue of human rights and the abuses thereof in our Jamaican penal system. This issue has been a drama piece that everyone has glued their eyes to their Televisions and computer screens for. It has been a rallying point and the proverbial “something-to-do” for the groups that call themselves human rights groups, and, of course, for our politicians, a healthy game of political football.

This death has called into question two prevailing issues in my opinion:

  1. Why the police arrested Deane for possessing a ganja spliff.
  2. The treatment of inmates and detainees in our island’s lockups.

Now, there are many persons who have opined that the police should have overlooked the spliff of ganja. Very recently, the Jamaican Government, through Justice Minister Senator Mark Golding,  announced (and later had passed in the House of Representatives) a bill in Parliament (The Criminal Records (Rehabilitation of Offenders) Act) decriminalizing the possession of small quantities of ganja and expunging the criminal records of those who have been arrested in the past of possessing small qualities of ganja. However, it can also be argued that the police were simply doing their jobs. After all, though the government announced that they would be looking to change the law, the law had not yet changed, and the police were bound to enforce the law.

That leads us to our second issue, which is far larger and more serious than the first. Jamaican lockups have their own negative reputation. This negative reputation, unfortunately, has sustained itself throughout the years. When persons aren’t being beaten by fellow inmates and/or allegedly by the police, they are being held in overcrowded, hot, stinky, unhygienic cells. In the case of Mario, he was being held at Barnett Street lock-up, beaten severely in the head and neck by his attackers, and left to battle for his life.

Now, based on my observations on the Jamaica policing system, it still seems that our policing and our treatment of inmates in lock ups emanates from a conservative, deterrent punishment system, where the accused arrives in lock up, that same accused is kept in custody and given such a bad experience that he will never do the crime again and keep on what we like to call the “straight and narrow” path. Even I believed that the police, when acting in duty to bring someone into custody, must deal with the accused in a stern or strict manner so that he, and others around him, would never even think about committing a crime. However, in our country, the deterrent theory has not really been as effective as the police, on many occasions, have overstepped their boundaries and has resulted in the severe injury or death of the accused. (And God help the Force if it was discovered that the person was not guilty of any crime).

What if international attention had not permeated in this case? What if persons such as the learned Florida based-Attorney Miss Jasmine Rand and the experienced American pathologist Dr. Michael Baden did not lend their service to the Deane family? It is certain to me that we would still probably be relying on the information given by the police at Barnett Street that he suffered “a fall off his bunkbed”.

The Constitution of Jamaica, as well as the Constitutions of all other Commonwealth Caribbean territories guarantees the inmate a safe stay while in lockup free of any form of inhuman or degrading treatment.

As upcoming legal sensations, and as citizens, we must ensure that the police are held accountable for their actions. We must ensure that due process is followed in the arrest and charging of our clients and loved ones. We must not hesitate to ask questions to the police, and where we feel that constitutional rights are being violated while in custody, to make a report to the Police High command and to INDECOM. Did you know that your parish’s Justices of the Peace are obliged by Law to inspect jail cells and to interview detainees about the state of their detention? If you didn’t know that before, the Mona Law Precedent has now taught you.

There are glimmers of hope to be derived from the Deane death though. Two gentlemen who shared the cell with Deane and who have been implicated in the beating have been charged and have since appeared before the courts. The officers that were in charge that night have also been charged in relation to the incident. It is my hope that justice will be served. It is this writer’s humble opinion that the international attention garnered from this case and the people who have left their normal, high-paying jobs to come and help this poor Jamaican family will never be forgotten. Thankfully, now that the law regarding possession of small quantities of ganja is changing, it is hoped that there will be no more Mario Deanes.

Markel Virgo

Second Year Law Student

The Faculty of Law, UWI Mona

Creative Corner: A Mother Lost

MentalHealth-s

Maya opened the door and entered into the living room trepidatiously.

‘Mama?’ she cried. ‘Are you here? Are you ok?’ she asked again. She was fearful about what she might see on entering the house. The last time she visited her mother, six months ago. She found her curled up on the floor of the kitchen bleeding after slitting her wrists.

‘I hope she remembered to take her medication’. Maya thought to herself. She cautiously went up the stairs of her mother’s house, opened the door to her bedroom and found her mother sitting on a bed and staring out of a window.

‘Hi Mama, how are you?’ she asked. Maya’s mother looked at her and responded with a big smile.

‘Maya baby, how are you?’ ‘My, look how you’ve grown into a beautiful young lady’, she said pleasantly. ‘How’s your father?’

Maya breathed a sigh of relief; her mother seemed lucid and responsive.

‘Daddy is fine’, she answered. ‘He misses you and wishes to see you soon.’

Maya’s mother and father were estranged after years harrowing incident. Maya had never seen her mother like that before. She still remembered the incident vividly.

Maya was only twelve years old at the time and the day was a generally normal one. It was the last day of school before the Christmas holiday and Maya was extremely excited as she and her family would go on lavish trips to the U. S. or Europe to visit relatives and go shopping. Her mother was in her usual happy mood, making breakfast and singing as she cooked.

Bobby, Maya’s older brother by one year was running late as usual and her father Peter was reading the Daily Gleaner while drinking a hot cup of black coffee. It was a generally normal day.

Maya was dropped at school by her mother and kissed goodbye as always and joined her friends at her junior school while her brother was dropped at the adjoining high school. The girls ran giggling to class, excited about the class party that was to take place.

After Morning Prayer, the class party started and all the children were laughing and playing games, eating or dancing to the music that was playing. All was well until a loud crash was heard outside. The teachers ran quickly out of the classrooms commanding the students to stay inside. Maya was excited and scared all at the same time.

“Nothing interesting ever happens at my school”, she thought.

Loud screaming could be heard outside as the teachers tried to restrain a crazy woman shouting.

Gimmie mi pickney dem!’ ‘Mi wa’n mi pickney dem!’

‘Calm down!’ ‘Calm down Mrs. Robinson, your children are fine!’

Maya froze for a moment as she thought to herself, my last name is Robinson. But after careful thought, she remembered that there were six people in her year group with that last name and countless others in the year groups below her.

All the children were excitedly running to the windows trying to see what was going on outside. Maya could barely see anything, only making out a female with crazy looking hair and a knife in her hand. Maya was suddenly knocked over by the crowd of children standing at the window as they quickly ran towards the door. The crazy woman burst through the doors of the sixth grade class still screaming and wailing.

Where is mi daughta! Maya! Maya, where are you” the woman screamed. Maya quickly stood and moved closer towards the woman waving the knife at the teachers to keep them at bay.

‘Mama!’ Maya cried in dismay, finding it hard to believe that her mother, calm, sweet, loving Mrs. Angela Robinson was behaving like a deranged rabid animal. At that, Maya’s mother looked at her vicious, fearful eyes. Her mother moved towards her with the knife mumbling crazy, inaudible words. She grabbed Maya on her arm, waving the knife at the teacher and children alike. Simultaneously Maya’s mother tripped over a back-pack and fell face first into the snack table at the class party, still holding her daughter.

Food was everywhere and Maya’s mother lay there passed out. Maya wept uncontrollably as the children and teachers from her class and all the other classes looked at the mess of her and her mother in horror.

The police and the hospital came to receive statements from the teachers and take her mother to the hospital. Maya and her brother were taken home by her father and they sat at home in silence. The incident was a year ago and they still had not discussed it.

Maya’s thoughts returned to her and she was back with the mother having a conversation. The nurse entered to five her mother the medicine prescribed by the psychiatrist; it wasn’t until after that horrid incident at school that the family discovered that their mother had bipolar disorder.

Maya’s Mother now lived alone with a twenty-four hour nurse in the family home, while Maya, her brother and her father lived together in a rented apartment, afraid that their mother would erupt into another episode, this time maybe causing all their deaths.

‘So how’s your brother?’ Maya’s mother asked. Bobby, Maya’s brother, had not been able to even look at his mother after the incident as he was ashamed that she was, in the words of his friends, a crack-pot and a Looney-bin.

He’s fine Mama. He still plays football and is doing very well in school, Maya said to her mother who nodded approvingly with a blank expression. Maya knew that she was only trying to hide the pain that was so conspicuously/visible in her eyes.

You know he still loves you very much, Maya said reassuringly to her mother. At that statement, one tear fell from her mother’s eye and she began to sob quietly as if she was an embarrassed child. Maya gently consoled her mother, holding her in a tight embrace.

In that moment, May did not see a monster, a crock-pot or a Looney, she only saw the woman who, only a year ago, would have been holding her in the same embrace, reminding her that she is loved and that things would be okay.

She saw her mother.

Camilla Parris-Campbell

Second Year Law Student

Faculty of Law UWI Mona