Protecting the Rights of Every Citizen: Debating the Sexual Offences Act

The Sexual Offences Act 2009 is under review by a Joint Select Committee of Parliament, and there is much to be considered and discussed. J-FLAG partnered with Mary Seacole Hall at the University of the West Indies (UWI) to host its second Tertiary Debate to highlight issues related to the legislation and to air and explain some of the concerns in a competitive atmosphere. And competitive it was! The topic was: “The Sexual Offences Act: Let the Punishment Fit the Crime.” The debate was sponsored by USAID’s Comet II program and endorsed by Jamaica AIDS Support for Life, the Jamaica Youth Advocacy Network and UWILeads.

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I am always a little confused by debates – especially the “parliamentary style” ones that Jamaicans have a fondness for. When I was at Oxford, I actually avoided the Oxford Union, dismissing the whole thing as a frivolous exercise. Now I can see the value of debates. A good debate brings burning issues into focus that might otherwise be lost in the clamor and confusion of radio talk shows and the like. Each point is considered; audience members nod their heads, murmur, applaud, sometimes laugh. It has a certain energy, and Jamaicans are good at it.

Senator Kamina Johnson Smith, COMET's  Joyce Hewett of Woman Inc and the former head of the Centre for
In conversation at the debate are (left to right) Senator Kamina Johnson Smith, COMET II Chief of Party Doug McCaffrey, Joyce Hewett of Woman Inc and the former head of the Centre for the Investigation of Sexual Offences and Child Abuse (CISOCA) Superintendent Gladys Brown. (My photo)

Last week’s debate between four teams from UWI and the University of Technology considered the motion: “This house believes all forms of forced penetrative sex should be classified as rape.” The UWI Mona campus team of Scott Mullings and McKoy Jackson won. Their main argument was that the law should create an enabling environment for all persons to report sexual crimes. Once penetrative sex takes place without consent it should be prosecuted as rape, they concluded. One of our fundamental duties is to protect the rights of every citizen.

A J-FLAG display at the Tertiary Debate. (My photo)
A J-FLAG display at the Tertiary Debate. (My photo)

On this note, I am going to share with you below the changes to the Sexual Offences Act 2009 recommended by a group of human rights organizations; their names are listed at the end. These specific, technical details may be uncomfortable to some. However, just imagine yourself, or a family member involved in such a terrible situation (God forbid). These changes to the law could well make all the difference. It’s all about human rights and justice, so let’s not be too squeamish.

VOICES FOR EQUAL RIGHTS AND JUSTICE Recommended Changes to the Sexual Offences Act 2009

Our submission is coming from a human rights perspective. Jamaica has a positive obligation to equally protect all persons within its jurisdiction from all forms of sexual violence. In order to equally protect all persons, each person must have equal access to justice. To achieve this, the peculiar vulnerabilities of different groups must be duly recognized (children, women, boys, sex workers, elderly, persons with disabilities etc.) and the substantive and procedural laws accordingly strengthened.

  1. The definition of sexual intercourse be extended to include penetration of the mouth or anus by a penis and penetration of the vagina and anus by an object except where the penetration is carried out for proper medical purposes. The expanded definition of sexual intercourse will change the scope of the offense of rape.
  2. The language used throughout the Sexual Offences Act be gender neutral.
  3. Sexual activity be defined in similar terms as currently exist in the Child Pornography (Prevention) Act 2009.
  4. All marital rape exemptions be removed.
  5. The legislation should determine which acts of grievous sexual assault and indecent assault should be tried in the Resident Magistrate’s Court and in the Circuit Court. The offenses should also be expanded to include penetration of the mouth by an object for a sexual purpose.
  6. The offenses in sections 8, 9 and 11 should be applicable not only to adults but to all persons who are above the age of sixteen years.
  7. The section 10(3) defense should not apply where the complainant is under the age of twelve years.
  8. A close in age defense with the proposed restrictions should be considered.
  9. It should be an offense where for the purpose of obtaining sexual gratification, a person intentionally causes a child to watch a person or third party engaging in a sexual activity or to look at an image of any person engaging in a sexual activity.
  10. Where an offense is committed against a person under the age of eighteen years by a person in a position of trust or authority to the complainant, then this fact shall be an aggravating factor in the determination of sentencing.
  11. The language used in referring to persons with mental disorders and disabilities should be revised so that the legislation refers to “persons with” mental disorders etc. as opposed to “person who is suffering from a mental disorder or physical disability”; the protection offered in section 16 should be expressly extended to “persons with intellectual disabilities”; the Act should extend the protection offered in section 16 to include circumstances where a person causes a person with a mental disorder, intellectual disability or physical disability to without consent engage in sexual activity with a third person or to watch a sexual act.
  12. Decriminalization of activities surrounding “prostitution” so as to better protect the safety, health and security rights of persons choosing to engage in sex work.
  13. The violation of elderly persons living in or in the care of residential care facilities and institutionalized facilities be recognized and criminalized.
  14. Reference to the complainant’s sexual history or behavior in trials concerned with sexual offenses should be further limited to the sexual activity that forms the subject matter of the charge.
  15. The Sexual Offences Act makes it clear that there should be no adverse inference from delay by the complainant in reporting a sexual offense.
  16. The law on compellability be revised to allow for a spouse to be a compellable witness where the matter concerns a sexual offense committed against a child.
  17. There be mandatory record of investigations as well as prohibition of confrontation.
  18. The provisions for in camera hearings be extended to select vulnerable groups.
  19. Sentencing guidelines should be developed for sexual offenses.
  20. The Act should allow for the provision of compensation to complainants.
  21. Finally we state our support for submissions made which call for an amendment to respective laws to: (a) allow for the provision of medical services, information and advice to minors under the age of sixteen without parental consent; and (b) expressly provide immunity from prosecution to health care professionals in select circumstances against aiding, abetting and facilitating offenses concerning children under the age of sixteen.

For further information contact:

Woman Inc   Email: wicrisiscentre@yahoo.com  Tel: (876) 929-9038

Caribbean Dawn

Caribbean Vulnerable Communities Coalition

HelpAge International

Institute of Gender & Development Studies

Jamaica AIDS Support for Life

J-FLAG

Quality of Citizenship Jamaica

WMW Jamaica

Institute of Caribbean Children and Families

Rose Robinson Hall

Vivian Gray

Tenesha Myrie

The Prime Minister makes a strong point at the debate. (My photo)
The Prime Minister makes a strong point at the debate. (My photo)

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