Tue | Nov 30, 2021

'Wayward' rape - Chuck questions whether expanding definition renders term meaningless

Published:Thursday | May 25, 2017 | 12:00 AMJovan Johnson
Justice Minister Delroy Chuck
Children’s Advocate Diahann Gordon Harrison

Definitions of rape are becoming "wayward", Justice Minister Delroy Chuck has argued, suggesting that, perhaps, it is time that Jamaica removes that designation from the books and captures it under a general category such as sexual assault.

He threw out the suggestion yesterday after hearing Children's Advocate Diahann Gordon Harrison's recommendation that the definition of rape be changed to include protection for boys.

Under Jamaican law, rape is the penetration of the vagina with the penis without consent.

Chuck is chairman of a parliamentary committee consisting of some senators and members of Parliament, which, yesterday, held its fourth meeting since resuming work in January.

Noting various proposals that rape should cover penetration of parts of the body such as the anus, the mouth, and the nostrils, Chuck questioned whether it was not better to drop the rape designation altogether.

"Would you want to see rape remaining in its traditional definition and any other offence being a sexual assault carrying, probably, the same penalty?" he asked. "Or do you think that as many countries have done, rape should include not only penetration of the vagina, but as you say, the nose and ears? It seems to me to be getting a bit wayward."

Police data for 2012-2014 showed that 531 rape victims were children, and Gordon Harrison said that redefining rape in the Sexual Offences Act is important.

"If we were to have the definition remain as is, it would really expose more children, especially our boys, to not having that redress under the law because we do know that there are boys in our population who are abused both by adult men and adult women."

If the abuse of boys involved anal penetration, it would be classified as buggery - an offence that ignores whether consent is given in cases of adults. But that offence carries a maximum penalty of 10 years' imprisonment. Rape, however, has a minimum prison term of 15 years and a maximum penalty of life.

There is an ongoing debate over the cultural and health merits of keeping buggery on the books or whether to classify it as rape. On that, Diahann Gordon Harrison, said that she would allow Parliament, "in its wisdom", to resolve.

"Our proposal," she said, "is that there be an amendment to the definition of rape within limits to cover the protection of boys."

As an example, she pointed to Trinidad and Tobago, which she said has retained buggery but which has established a new offence called sexual penetration of a child. The offence is defined as the insertion of any body part or any object into a child's bodily orifice or the insertion of a part of a child's body into a person's bodily orifice.

It is gender neutral, Harrison said, and "it covers both boys and girls being potential victims, and it would capture females being charged with that kind of exploitation".

But Chuck was insistent. "When you look at the definition of rape, if you take it too broadly, it becomes meaningless. That's my view. Instead of calling it rape, you just call it a sexual offence or assault.

"Any sexual assault is rape because that is effectively what the definition is looking at. You go further to say, if you use any part of your body, or if you use an instrument to penetrate any orifice, it is rape. How does that make sense?" In other words, Chuck added, with a chuckle, "if you use an instrument to put in a person's nose, that can't make sense!"

Government Senator Dr Saphire Longmore said that while the examples might be funny, they were "actual occurrences".

Mark Golding, an opposition senator, noted that Jamaica has a grievous sexual assault provision that covers a "whole wide range of deviant sexual conduct".

In February, Chuck gave instructions to a law-reform team to come up with the "perfect definition" of rape after the committee heard submissions from United Nations representatives here who recommended that rape be defined as "against any person", which includes men and boys, as well as covering "other penetrative practices".