One step forward, two steps back

The first item on the 8 o’clock news on CVM TV this evening was the parliamentary committee debate on the Offences Against the Person Act, in particular, marital rape. This might seem like old news in other parts of the world, but here in Jamaica, there remain laws left over from Victorian times that are only now being updated. And to be fair, by updating the laws now, with the further development of women’s rights in the last twenty years, Jamaica has a golden opportunity to leapfrog towards more equitable and realistic legislation than might be found in other countries.

On the international stage, Jamaica seems to be an active participant in the promotion of women’s rights, ratifying the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) in 1981, and adopting the Forward Looking Strategies generated at the Third Conference on Women in Nairobi, Kenya in 1985. Ratifying and adopting are easy; actually implementing change is more of a challenge, as shown in the summary of Jamaica’s national action plan and strategies for implementation of the Platform for Action (Beijing, 1997) — data for the adoption and for the allocation of resources is tersely marked “NA”, meaning in practice, no adoption, no allocation.

Nevertheless, Jamaica’s ratification of CEDAW means that it accepts the following actions are criminal offences:

  • to assault, injure or wound a spouse or partner;
  • to threaten and put a person in fear;
  • to rape and force a woman to have sexual relations against her will.

Bringing these definitions into national law is another matter, as was evident at last week’s session of the committee discussing the Offences Against the Person Act, in which the Jamaica Constabulary Force, backed by government Senator Norman Grant, submitted that referral to the Director of Public Prosecution (DPP) be maintained in cases of marital rape. Their argument was that the intervention of the DPP would help preserve the institution of marriage. Grant suggested that this would offer a chance to “save the marriage” and a “second opportunity for the family to be restored”. Hello?! Preserving an abstraction over a physical assault? Encouraging children to grow up in an abusive environment?

In a remarkable show of restraint in the face of such idiocy, Joyce Hewitt, vice-president for Public Education and Legal Reform at Woman Inc, claimed that, “Marital rape occurs in a chronic situation where the marriage has already broken down.” In this way, she was able to deflect the argument for preserving the “institution of marriage”, and Attorney General and Committee Chair Senator A.J. Nicholson accepted that marital rape need not be referred to the DPP, but treated as any other crime.

So far, so good. Yet, by arguing that marital rape occurs in collapsed marriages, Hewitt had unwittingly set the scene for today’s debate about the definition of marital rape. After the committee meeting, the Attorney General tried to explain to the TV reporter when rape “can” occur in marriage: When a marriage is “on the rocks”, then non-consensual sex is rape; when it takes place within a “wholesome” marriage, it is not.

Compared with the evidence-based definitions in the CEDAW, such terms as “on the rocks” and “wholesome” have no place in a serious debate on criminal offences, and it is mindboggling for the government’s highest legal authority to use such terms, even if he is trying to show himself as a plain-talking man of the people. “Wholesome marriage” and “marital rape” are mutually exclusive terms: if marital rape occurs, then the marriage is not wholesome — it’s that simple.

So let’s have no more talk of wholesomeness, and keep it clear: non-consensual sex is rape, regardless of the marital status of those involved, and rape is a crime.

Update: This text was published in the Jamaica Observer on 11 March 2007.

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