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Dane Lewis | Sexual equality before the law

Published:Friday | August 19, 2016 | 8:00 AM

There are three core principles that are lacking within the Sexual Offences Act (SOA). The absence of these principles has disheartening implications for the administration and policing of sexual offences and securing justice for hundreds of children, women and men who are victims.

The act lacks an equal recognition of all forms of sexual abuse, fails to protect all Jamaicans - irrespective of sexual orientation, gender identity or marital status - from all forms of sexual abuse, and disregards the constitutional principle of equality before the law.

In Section 2, sexual intercourse is defined as where the penis of one person penetrates the vagina of another. Section 3 defines rape as where a man has sexual intercourse with a woman without her consent, knowing she did not consent or not caring whether she did. If that same man puts his penis anywhere else on that woman or uses any other body part, or even an object, the offence of rape has not been committed. This is where Section 4 of the act comes in.

The offence of grievous sexual assault criminalises non-consensual oral sex and penetration of the vagina or anus by anything other than the penis. Under this section, women can be convicted, but this offence may be tried in a lower court and can result in comparatively lower sentences.

Section 76 of the Offences Against the Person Act criminalises all occurrences of anal penetration by the penis, however such occurrences, whether consensual or non-consensual, are given a maximum sentence of 10 years. Compared to the maximum sentence of life imprisonment for rape, this is unacceptable.

Interestingly, even though anal penetration by penis is criminalised without a question as to consent, other forms of anal penetration are possible of being consented to - if they occur between a man and woman, or two women. These definitional distinctions between offences have implications for offences such as incest and sexual intercourse with a person under 16, which only occur in instances of penile penetration of the vagina.

 

UNEQUAL RECOGNITION

 

Heterosexual female victims receive greater protection than any other possible victims. Consequently, the SOA places Jamaicans into sexual groups based on the offences they are likely to be victims of. Forced penile penetration of the vagina is treated as the most serious offence, and then the SOA tries its best to capture everything else while still maintaining the supremacy of penile penetration of the vagina.

This unequal recognition implies that only certain forms of abuse are legitimate and worthy of serious condemnation. The rest are not as serious and may not be protected. What does this say to male victims of abuse? Or victims of anal and oral penetration? Or LGBT persons in abusive relationships? The current SOA denotes that they are second class citizens. By creating a heterosexual hierarchy of offences, some Jamaicans are less protected than others.

Section 13(3)(g) of the Jamaican Charter of Rights guarantees the right of everyone to equality before the law. However, the SOA establishes an unequal and inequitable protection of persons, affording some more protection than others. Take the following example: If a father has sex with his daughter vaginally and the mother separately molests the same daughter vaginally, he can be sentenced to life for incest, but the mother may be sentenced to less than three years if she is summarily tried for grievous sexual assault.

This reality not only offends Section 13(3)(g) but also 13(3)(i), which guarantees the right to non-discrimination. The many sections of the SOA, read together with sections 76-79 of the Offences Against the Person Act, are flagrantly in breach of these principles, but are safeguarded from constitutional challenge by the savings law clause found in Section 13(12).

To remedy the issues raised above, the Sexual Offences Act should be amended by Parliament to give the equal recognition and protection constitutionally guaranteed to all Jamaicans. This would be achieved by using a gender- and orifice-neutral definition of sexual intercourse and rape. Other offences throughout the Act should be amended to reflect this approach. This would remove the need to rely on problematic offences of grievous sexual assault and buggery.

- Dane Lewis is chairman of J-FLAG, a gay-rights lobby. Email feedback to columns@gleanerjm.com.