Sun | Jul 5, 2020

Where is the rape?

Published:Saturday | May 30, 2020 | 12:18 AM

THE EDITOR, Madam:

I WRITE in direct rebuttal to Asheki Spooner’s letter titled ‘Are we now celebrating statutory rape?’, published in The Gleaner on May 20. The fact of the matter is that Asheki’s letter should only be conceived as an attempt to mislead the citizens of Jamaica into believing that an act of rape was committed by an 18-year-old female against the 15-year-old son of Adidja Palmer when, in essence, there is nothing in law to support it. For full disclosure, I do not present myself as a lawyer in any shape or form, so I stand corrected to any higher reasoning. However, having said that, even a cursory inspection of Jamaica’s most recent Sexual Offences Act (SOA) of 2009 would assist anyone to emphatically nullify the premise of her argument. What now follows is my justification.

The first error is that by virtue of an 18-year-old female becoming pregnant by a 15-year-old male, “this, according to our rule of law, constitutes statutory rape”. Not so fast.

According to the SOA of 2009, Part 2, Subsection 3: “A man commits the offence of rape if he has sexual intercourse with a woman a) without the woman’s consent and b) knowing that the woman does not consent to sexual intercourse or recklessly not caring whether the woman consents or not.” ‘Man’ here is not gender-neutral; it refers to a male only. This lack of gender neutrality in the subsection completely gives women impunity in regards to rape. Further, throughout the act, the aforementioned Subsection 3 remains as the point of reference for sexual intercourse with another person under the age of 16. Of significance, in the SOA, gender neutrality is first introduced in Part 4, Subsection 1 (e) and (f), allowing both men and women to be charged with the act of grievous sexual assault when “the offender places his/her mouth onto the vagina, vulva, penis, or anus of the victim” and “if the act is carried out upon a victim under the age of 16 years”.

Further, Spooner states: “It is rather disheartening to witness the hypocrisy in discussion on the issue across various platforms, with many seeing it as something to be lauded. Had it been a 15-year-old girl and an 18-year-old male, we would have been singing a different Sankey.” In defence of those who laud or who may be neutral on the issue, if, by Jamaican law, statutory rape was not committed, why should people be expected to be unhappy or riled up about it?

Spooner herself (whether knowingly or unknowingly) espoused the position that the 18-year-old lady had not committed statutory rape under Jamaican laws through her claim that “if this were to happen in other countries, that young lady would be facing criminal charges”. And yes! Had it been a 15-year-old girl and an 18-year-old male, the full length of the law would have come to bear as defined by Part 4, Subsection 10 of the SOA.

At best, Spooner could make a strong case against the primitive and parochial nature of the SOA of 2009 and should call for the State to immediately amend such, but to openly suggest the commission of statutory rape within this context could be deemed as gross mischief in misleading readers not only in Jamaica but around the world. Laws are made through due process via a legislative framework, not through public-opinion columns.

NIGEL NELSON

Lecturer, Moneague College

nigel.nelson@

moneaguecollege.edu.jm