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 Jamaica arguably has one of the most outdated rape provisions in the English-Speaking Caribbean.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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