Letting anal rape off the hook?
Tenesha Myrie, Guest Columnist
The call for equal protection for male victims of sexual violence is being berated by some as an underhanded attempt to legalise buggery. The argument is also being made that the vagina has a higher 'moral' value than the anus, therefore, victims who are forcefully penetrated via the anus with a penis should not have the same protection as women and girls who are forcefully penetrated in the vagina with a penis.
Will any Jamaican woman say that being forcefully penetrated via her anus with a penis is less heinous than being forcefully penetrated in her vagina with a penis? Will any Jamaican parent say that the forced penetration of their four-year-old son or daughter's anus with a penis is less heinous than the forced penetration of their four-year-old daughter's vagina with a penis?
Men and boys have limited protection from sexual violence. This inadequacy is most evident in the law's failure to accurately define and recognise the nature and harm of forced penetration of the anus with a penis ('anal rape', for the purposes of this article). Traditionally, men and boys were mostly vulnerable to anal rape, while women and girls were generally vulnerable to vaginal rape. A victim of anal rape, whether man, boy, woman, or girl, is forced to rely on Section 76 of the Offences Against the Person Act, 1864 (buggery law) for relief. This practice is discriminatory, as consent is irrelevant for the offence of buggery and it carries a significantly lesser penalty than rape.
Trivialising a Serious Offence
Buggery carries a maximum penalty of 10 years, while rape carries a maximum penalty of life imprisonment and a minimum penalty of 15 years. Of note is the fact that by virtue of the offence of grievous sexual assault, forcefully penetrating another person's anus with an object or with a finger can also carry a sentence of life imprisonment.
By failing to expressly recognise and appropriately penalise anal rape, the law trivialises the severity of violence perpetrated and the gravity of harm experienced. It communicates that anal rape is less heinous than vaginal rape and it ignores the fact that victims of vaginal rape and victims of anal rape alike suffer traumatic experiences that include physical injuries, STIs and anxiety over the transmission of STIs, psychological distress, and social stigma.
The use of the buggery law to deal with cases of anal rape against boys is also inadequate because it fails to provide a just and effective remedy. By virtue of the limited definition of rape and sexual intercourse, such boys under 16 years of age have no protection under the statutory rape provision in Section 10 of the Sexual Offences Act, 2009, nor the rape provision in Section 3, both of which carry a maximum penalty of life imprisonment and a minimum penalty of 15 years.
How long will we continue to ignore the fact that the law treats child victims in a discriminatory manner on the basis of their sex?
ANAL RAPE AND BUGGERY LAWS CAN COEXIST
The concern is being expressed that if the law recognises anal rape, the buggery law would be impliedly repealed and consensual anal sex will be legalised. This is not the case. A substantive offence that protects against anal rape can coexist with the buggery law.
The buggery law broadly criminalises all instances of anal penetration with a penis. An anal-rape provision would be specific to instances of forced anal penetration, and so the buggery law would not become redundant. The later statute would only affect the earlier statute to the extent of any inconsistency.
In basic terms, the anal-rape provision would only deal with instances of forced anal penetration with a penis, while the buggery law would apply to all other instances. In our current legal framework, the mere recognition of anal rape will not result in the legalisation of buggery. This has not happened in any other jurisdiction, including Barbados and Guyana, which maintain their laws on buggery and expressly recognise forced penetration of the anus with a penis as rape.
Anal rape ought to be legitimately recognised by being appropriately named and penalised. Securing equal protection for men and boys by adequately protecting against anal rape is not about legalising buggery. It is about recognising the harm experienced by men, women, boys and girls and providing just and effective remedies for all victims.