Tue | Jul 16, 2019

Linnette Vassell | Lesson of history – Time to repeal the Offences Against the Person Act

Published:Friday | June 14, 2019 | 12:32 AMLinnette Vassell/Contributor

The debate on abortion and the call for the repeal of the Offences Against the Person Act (OAPA) have pivoted around themes of health, human rights and social justice. It is also important to examine the OAPA itself in terms of the historical, economic, social and political context within which it was enacted.

In this regard, one writer has suggested that we should be cautious about abortion based on our history of enslavement. To the contrary, that history should, in my view, lead us to decriminalise abortion. It should strengthen our commitment to affirm and secure reproductive justice for women: a woman’s right not to have a child, her right to have a child, and the right to a safe and healthy environment within which to parent. Enslavement was incompatible with rights and the existing OAPA has perpetuated a legacy of unfreedom. The time has come for repeal.

The OAPA was enacted throughout the British Empire and made applicable in Jamaica 155 years ago in 1864. This was only 27 years after the full abolition of slavery in 1838. The OAPA meted out the penalty of life imprisonment with or without hard labour to “every woman being with child who sought or secured a termination of pregnancy. Anyone convicted of giving support to the woman towards this end faced three years of imprisonment. There was no thought given to the spiritual malfeasance of slavery and the high rate of death of women and children in childbirth.

Renowned historian Barry Higman, revisiting data from his major work, ‘Slave Population of the British Caribbean 1807-1834’, has stated that in Jamaica in the 1820s, near to half of all babies died within the first year of life. With slavery ended and the need for more hands to labour, the strategy of focusing on women’s bodies to produce for the benefit of the plantation system was being rigorously engaged through the OAPA.

THREE CONSIDERATIONS

For criminalisation of abortion was rooted in at least three considerations. First, there was the pervasive and paramount economic motive of the planter class to secure the prospects for a stable labour force. Over the long period of enslavement, they had pursued various strategies to exploit the unpaid labour of the enslaved population by natural increase.

Heather Cauteau examines this issue in her article ‘Women, the Womb and Weaning: Natural Increase on Eighteenth-century Sugar Plantations’, published in Engendering Caribbean History, edited by Verene Shepherd. Cauteau speaks to the early-18th-century phase when natural population increase was encouraged. With the development of large-scale sugar monoculture and increased importation and exploitation of enslaved Africans, the policy was abandoned – wanton brutality gave no consideration to the life of man, woman or child.

However, with abolition on the horizon, pro-natal policies to encourage the natural increase of the population by enslaved women were again pursued from the late 18th into the early 19th century.

These policies did not succeed for a number of reasons, including the brutal conditions of plantation life itself and the impact on women’s lives and on the survival of children. Cauteau quotes Barbara Bush, who, in her Slave Women in Caribbean Society, states, “The possibility that abortion and contraceptive techniques, even infanticide, were practiced in slave society…need to be explored in greater depth.”

That exploration would, among other things, lead us to consider that abortion would have been the exercise of personal choice by enslaved women in the context of the brutish exploitation of slavery, including their rape and degradation, as revealed, for example, by the exploits of the notorious Thomas Thistlewood graphically exposed in Douglas Hall’s In Miserable Slavery.

The desire to control women/women’s bodies and sexuality – pregnancy, abortion and mothering – relates also to the specific context of the widespread refusal of black women to accept wage labour on the plantation in the post-slavery period. The criminalisation of abortion under the OAPA was therefore part of the project, grounded in economic considerations to increase population and the labour force in the context of continuing interest by the planter class in immigration and indentureship and the persistently high infant mortality rates.

CHRISTIANITY’S ROLE

The OAPA was also framed by and within patriarchy and Victorian ideology, which defined women’s chief duties as childbearing, homemaking and moral leadership in the family, all under the authority, power and control of men. Sad to say, but true: Christianity and religious organisations, including many women’s organisations, played a pivotal role in shaping practice and thinking to conform women and men to the tenets of British colonial gender policy. The policy was directed at all aspects of life, and as Jenny Jemmot explains in her work, ‘Ties that Bind: The Black Family in Post-Slavery Jamaica, 1834-1882’, family and social stability were vital considerations. “Maintenance of social order relied on the adoption by the formerly enslaved of ‘civilised habits’, especially with respect to their family lives,” she writes.

Jemmott states further that while the colonial authorities relied on the activities of missionaries to spread their Eurocentric family values, especially to denigrate the black majority for what they described as the “scourge of illegitimacy”, they increasingly came to rely on laws to enforce these ideas.

Concepts of morality, deeply laden with racism and sexism, were imposed as part of Victorian ideology on to the “subject peoples” and reinforced by a legal system which claimed to dispense justice. This is the third aspect of the context within which the passing of the OAPA must be viewed.

In their work ‘Neither Led Nor Driven: Contesting British Cultural Imperialism in Jamaica, 1865-1920’, Brian Moore and Michelle Johnson emphasised the character of these laws as follows:

- They were framed around concepts of Christian morality imported wholesale from bourgeois Victorian society, principally by the missionaries and superimposed on the Jamaican people;

- They have a strong class bias designed to exempt the upper and middle classes;

- They were framed with a gender bias which placed the burden of responsibility, and the penalty of failure, on women.

The Sex Disqualification Act, another tool and legacy of British colonial policy, constrained the role and place of women in many aspects of economic, social and political life. It encoded the exclusion of even elite and middle-class women from many areas of professional employment, from freely holding property on their own account, from the legal profession, and from freely engaging in many areas of civic life. For example, women could not be justices of the peace or jurors; the 1870 Jurors Act stated that “juror” should mean male persons only.

When a few elite and middle-strata women first gained the right to vote in 1919, they had to meet higher income and educational qualifications than men who had long before exercised voting rights. When they came to be officially admitted into civil-service employment in 1946, women were required to have higher entry requirements than men, were restricted in the positions they could hold, received lower remuneration, had to resign their positions if they got married, and faced a host of other civil disabilities.

Tracy Robinson, in the July 2018 Churches’ Emancipation Lecture, reminded us that “law, its concepts, institutions, actors and processes, are neither neutral or natural. Inasmuch as we are governed by law, we must always also be questioning and interrogating and uncovering law” (‘Emancipation, the Lesson and the Legacy: From the ‘Chattel House’ to the ‘Family Home’, Property and the Law after Emancipation’).

OFFENSIVE LEGACY OF ENSLAVEMENT

In this renewed debate on abortion, questioning, interrogating and uncovering the Offences Against the Person Act reveal that the criminalisation of abortion is part and parcel of the economic, sociocultural, ideological and legal superstructure of colonialism; it is an offensive legacy of enslavement. It is a sign and a manipulation of our unfreedom – the denial of our right to choose. Do parliamentarians want to stand in that legacy?

Jamaican women and men have given their judgement on the OAPA. While not supporting abortion on demand, some 82 per cent of women and 67 per cent of men, as revealed in the May 2018 poll ‘Her Body, Her Choice’, believe that the Government has no place in determining if a woman ends her pregnancy or not. It is time to trust women to make sound moral judgements, to put aside the legacy of enslavement and colonialism and affirm the potential of our Independence. It is full time to implement the Gender Sector Policy of Vision 2030, the National Policy on Gender Equality, and the numerous other instruments that Jamaica has signed affirming commitment to gender equality and the empowerment of women and girls. This is the building block for securing sexual and reproductive justice for women, girls and families.

Linnette Vassell is a board advisor at the Women’s Resource and Outreach Centre. Email feedback to columns@gleanerjm.com