Law: A man cannot be raped

Should rape be limited to the forcible penetration of a penis into a vagina? In other legal systems, this is not the case. But in Jamaica, it is.

In our law, rape is committed when a man has sexual intercourse with a woman without her consent, or when he knows that she does not consent, or when he recklessly disregards her consent.

In our sexual offenses law, sexual intercourse is defined as penetration of the penis into the vagina (only), so it is “penetration of one person’s vagina by another person’s penis.” So if that same man uses an instrument or other body part to penetrate her vagina, mouth, or anus, it is considered aggravated sexual assault. Or if he uses his penis to penetrate anywhere other than her vagina, he technically cannot be charged with rape.

In Jamaica, a person commits aggravated sexual assault if he or she penetrates the victim’s anus or vagina with any part of his or her body other than the penis or any object manipulated by him or her, causes another person to do the same, inserts his or her penis into the victim’s mouth, causes another person to insert his or her penis into the victim’s mouth, or places his or her mouth on the victim’s vagina, vulva, penis or anus, or causes another person to do the same.

I have had several experiences over the years at ministerial and constituency level of dealing with families where young girls and boys have been grouped together by other boys and forced to have sex in their anuses, and the perpetrators have been charged with serious sexual assault.

If convicted of rape, the penalty is life imprisonment with a minimum sentence of 15 years; this is decided before the Supreme Court.

Aggravated sexual assault, on the other hand, can be tried either in the District Court or the Supreme Court. In a case before the District Court, the maximum sentence to be served is three years. However, if the case is brought before the Supreme Court, the offender can be sentenced to life imprisonment with a minimum of 15 years.

In Barbados, Section 3(6) of the Sexual Offences Act states that rape includes “insertion to any extent in circumstances where the insertion of the penis of one person into the vagina of another person would constitute rape,

(a) the penis of one person into the anus or mouth of another person; or

(b) an object not forming part of the human body which is manipulated by a person into the vagina or anus of another person.”

In Barbados, there is no regulation as to who, where or what must be used for rape to occur.

According to our law, only a man can rape a woman. Furthermore, a man cannot be raped in Jamaica (either by a man or a woman), unlike in Barbados, where the definition of rape is more gender-neutral.

The question arises: Shouldn’t we make the act of rape gender-neutral in Jamaica?

To do this, we would have to change our legal definition of sexual intercourse.

Seems like a simple double step, right?

No it’s not.

I once dared to call for a change in our legal definition of sexual intercourse in Parliament, based on the reports of sexual abuse of our children that I knew first-hand as an MP and former Minister for Youth Affairs. The backlash I received was that I was instead trying to change our sodomy laws, which have been in place since the 19th century.

In England, the Buggery Law of 1861 was amended in 1967. However, when Jamaica gained independence from Britain in 1962, it retained the British Buggery Law, which remained unchanged and is still in force today.

Our sodomy law criminalizes same-sex activities and related conduct, including anal sex and any sex between men.

“Sodomy” is defined as “any male person who, in public or in private, commits a grossly indecent act towards another male person, is an accessory to the commission of such an act, or induces or attempts to induce such an act by a male person, shall be guilty of a misdemeanor and, if convicted, shall be liable, at the discretion of the court, to imprisonment for a term not exceeding two years with or without hard labour.”

These acts are referred to as “unnatural crimes” and “offences against morality” and state that “anyone found guilty of the heinous crime of sodomy, whether against humans or animals, may be punished with imprisonment and hard labor for a term not exceeding ten years.”

I have said it before and I will say it again: we have a legislative dilemma that creates unjustified legal consequences for the way we deal with rape in this country. Rather than face the fact that many of our boys and men are raped and change the law to give them redress, Jamaica is burying its head in the sand. On the one hand we demand equality in the treatment of men and women, but on the other hand we cling to hypocrisy when it suits us.

All too often it is religious extremists who sabotage the legislation that tied Parliament’s hands by arguing that we should not change our definition of sexual intercourse, perhaps to convince themselves that it is morally right to prevent any real or perceived legality of same-sex relationships in our society.

Because of their attitudes and our unchanged legal definitions, many boys and men who have been or are being raped or sexually abused by men continue to suffer in silence and do not come forward for fear of stigma or imprisonment, even though they are the victims.

I will always be at the forefront of protecting the most vulnerable among us from the forces that believe women should not have a choice over what happens to their bodies, and that we should cling to outdated definitions to justify serious sexual assault when in reality girls and boys are being raped.

Too many politicians are afraid of resistance from religious conservative groups and it is time we recognized that what we are doing is wrong.