Jamaica’s Sexual Offences Act (2009) is past due for review and, earlier this month, Justice Minister Delroy Chuck signaled that the crime of rape needs to be redefined in the law. He asked legal experts to come up with a “perfect definition.” The law currently defines rape as nonconsensual penetration of a vagina by a penis – a narrow definition that fails to protect male victims of rape and female victims of non-vaginal rape or vaginal penetration with an object or body part other than a penis.
The law perpetuates an anomaly of Jamaica’s “buggery” laws, first promulgated by British colonial authorities in 1864. Jamaica’s Offences Against the Person Act, Section 76, includes “the abominable crime of buggery,” punishable by imprisonment for up to 10 years, with hard labor. The law draws no distinction between consensual and nonconsensual intercourse – anal sex was regarded as intrinsically nonconsensual.
In this respect, Jamaica’s laws are not unique. Vaguely defined sodomy laws are ubiquitous remnants of British colonial rule. Colonial lawmakers drew no distinction when it came to sex “against the order of nature” with any “man, woman or animal” or between consent and force. When Jamaica’s Sexual Offences Act was last revised in 2009, this narrow definition of rape remained.
Human Rights Watch reports show that the “buggery laws” contribute to a hostile climate in which discrimination and violence are rife. The distorted origins of the law, which conflated consensual and forced anal sex, means that men and women are unfairly treated for consensual sex and inadequately protected against sexual violence.
The Justice Ministry should amend the Sexual Offences Act to remove gender specific definitions of sexual intercourse and rape, and to include oral rape and other forms of penetration. Punishment should not be determined by the sex, gender, sexual orientation, or gender identity of the rapist or victim.