Letter of the Day | Wrong turn on rape, Mr Chuck
HE EDITOR, Sir:
I would like to believe that recent utterances by Minister Chuck about replacing 'rape' with 'sexual assault' in the Sexual Offences Act (SOA) were coming from a principled place, but he made a significant wrong turn.
The major issue with the definition of rape in the SOA is that it is wholly dependent on the definition of 'sexual intercourse'. The law foolishly (and menacingly) defines sexual intercourse as a penis entering a vagina. If a penis enters a mouth or an anus, it is not considered sexual intercourse. Consequently, if a penis enters a person's mouth or anus without the person's consent, the law says that it is not rape.
Penis-to-anus penetration is 'buggery', and forced penis-to-mouth penetration is one example of 'grievous sexual assault'. They are both sexual offences, but they are lesser offences when compared to rape. Rape is more severely punished, and only women can be raped under the law. The immediate issue is that all persons are not equally protected from sexual violence because of the layers created by the legislation. A person who rapes a boy can only be charged for buggery or grievous sexual assault.
The recommendation coming from many local civil-society groups, including Voices for Equal Rights & Justice, is that the definition of sexual intercourse be expanded and rape be a gender-neutral offence. That way, no matter who rapes a child or how they do it, the law will punish them equally.
There has been another suggestion to fix the issue. This suggestion is to de-centre 'sexual intercourse from the definition of rape'. Rather than redefining sexual intercourse in legislation - which ignites many persons to talk about which kind of intercourse is natural or not and which kinds of intercourse the law should recognise and why - the suggestion is to use another term to be the basis of rape. This could be 'sexual activity'. A person would be guilty of rape if they have sexual activity with a person without their consent.
The minister seems to understand this latter recommendation as being about removing 'rape' rather than changing the legal basis of rape. This is a wrong turn on his part. It is critical that the gravity of rape be reflected in the wording of the legislation. To be clear, forcible penetration is rape. The nature of that penetration is irrelevant, and the law should unequivocally state this.
Having said this, whether you expand the definition of sexual intercourse or replace sexual intercourse in the definition of rape, the law must equally protect all persons from sexual violence and it does so by reflecting our Jamaican realities. We all know that rape is rape. It's time for the law to catch up.
Policy & Advocacy Manager
Equality for All Foundation