Buggery law does not prevent child abuse
Below is a submission from the Jamaica Forum for Lesbians, All-Sexuals and Gays (J-FLAG).
Sexual harassment, abuse and violence should be a concern for all Jamaicans. In 2011, more than 2,600 cases of sexual abuse were reported to the Office of the Children's Registry (OCR) - an increase of 70 per cent when compared to 2010 (when 1,574 cases were reported). Since the OCR was established in 2007, it has received an alarming 7,245 reports of child sexual abuse between 2007 and 2011.
Undoubtedly, all well-thinking Jamaicans, including our friends from the Love March Movement and the Jamaica Coalition for a Healthy Society, should ensure all our children are protected from harm. It is, therefore, incumbent on every Jamaican, with the help of members of civil society, to ensure our laws, policies, and programmes are evidence-based and in the best interest of our most vulnerable citizens, the future of our nation.
Many concerned citizens have suggested that Jamaica must retain the colonial-era buggery law to completely protect our children, particularly boys, from sexual abuse. Understandably, the buggery law is the only section of our legislation which conceivably addresses the sexual abuse of males through anal intercourse.
Sections 76, 77 and 79 of the Offences Against the Person Act (1864) specifically criminalise "the abominable crime of buggery committed either with mankind or any animal", and "gross indecency" between men in public and private, and we submit that they are insufficient as safeguards against child abuse in their application.
In law, buggery is defined as anal intercourse. Neither age of consent, attainment of the age of majority, nor privacy are defences for the crime of buggery. Therefore, the relevant sections of the Offences Against the Person Act criminalise buggery irrespective of circumstances.
Of note, the maximum penalty for buggery is 10 years at hard labour. By contrast, pursuant to Section 10 (4) of the Sexual Offences Act, any person found guilty of rape (narrowly defined as non-consensual penetration of a vagina by a penis) is liable upon conviction in a Circuit Court to a maximum penalty of life imprisonment. Based on the formulation of the relevant sections of the acts and the definitions provided therein, males cannot by law be raped, only 'buggered', and further, where females are sexually assaulted in their anus, this cannot be classified as rape and is instead 'buggery'.
The disparity in the applicable penalties for these separate crimes is great and we posit that this places young boys at greater risk than many perceive as they face greater psychological trauma knowing that their abuser may not even spend a full 10 years in prison.
PROTECTION FROM CHILD SEXUAL ABUSE
J-FLAG continues to strongly condemn sexual violence and all other forms of child abuse, and endorses efforts to apprehend and bring perpetrators to justice, regardless of their sexual orientation.
The Sexual Offences Act 2009 and Child Care and Protection Act (CCPA) 2004 are the legal instruments which legislators crafted to protect Jamaican citizens from sexual violence.
In light of the alarming increase in child sexual abuse and the disproportionate punishments meted out to those found guilty depending on the circumstances, we posit that the most appropriate action would be to amend the relevant acts designed to criminalise sexual violence so that perpetrators of rape, regardless of gender, whether vaginally or anally, or with any appendage or object, can be dealt the full brunt of the law.
Individuals who rape our children should be liable to serve much more than 10 years in prison; the orifice they choose should not determine the duration of their incarceration.
The CCPA places great responsibility on us to report incidents of abuse, touching, or sexual grooming of children to the relevant authorities. In support of this, J-FLAG urges that we strengthen these laws in order to send a message to our children that we care equally about all of them.
J-FLAG also firmly believes the buggery law should be limited to exclude consensual sexual intimacy between adults in private and that the penalties for sexual abuse can be made harsher. Until such a time when we develop more comprehensive laws to defend against all forms of sexual abuse and violence, we will still need the buggery law to punish some sex offenders.
As consensus that the buggery law should be amended to exclude consensual intimacy between adults in private builds, we should all commit to:
1 Working with the Government to engender a culture where all adults and children can know their sexual and human rights are protected and that they can report all forms of abuse;
2 Developing a system that is responsive to children's needs when unscrupulous persons abuse them sexually, physically and psychologically; and
3 Ensuring that priority is given to child-abuse matters in the courts so that the perpetrators can be brought to justice as soon as possible.
J-FLAG remains committed to nation building by helping to make Jamaica a safe, cohesive and just society. We recognise the rights of children, as articulated in the CCPA and Convention on the Rights of the Child, which include the right to be free from sexual interference by adults.
We continue to advocate for a more inclusive Jamaica where all our children can thrive and realise their best potential. J-FLAG is committed to doing our part in creating a Jamaica where generations to come are judged solely by the integrity of their character, and their potential as human beings to be the best citizens they can be.