Tertiary Level Debate Leaves Much to be Desired

“This House believes all forms of forced, penetrative sex should be classified as rape.”

This was the moot at the recent J-FLAG tertiary level debate, part of their campaign to raise awareness about the proposed amendments to the Sexual Offenses Act. The teams were from the UWI Mona and WJC and UTech campuses, composed of what we were assured were seasoned and capable debaters. But most of the debate left audience members wanting more, the speakers danced around weak points or resorted to fire-and-brimstone tactics to get their points across.

The first speakers from UWI-WJC were the main culprits. They approached the mic stand like it was a pulpit and then proceeded to use a combination of exaggerated gestures and raised voices to convince us of their righteousness. It didn’t help that UWI argued for the moot, rather than against. Most of the audience was on their side, and the overall attitude of the UWI speakers was one of smug self-righteousness.

Fire and brimstone tactics
Fire and brimstone tactics

They pontificated about the need to protect all groups equally, and therefore the need to punish sexual crimes equally but they ever really explored the scope of the motion, and never talked about how they would go about implementing it. They talked about the damage to personal dignity, a concept which is difficult to classify, much less in legal terms.

Even though UWI’s first speaker was supposed to define the terms of the moot (that’s what she said she would be doing), she didn’t. No one in the debate defined ‘forced’ or ‘sex’, or (if they did) they breezed right on past it.

For their part, UTech was a bit of a disappointment. Their first two speakers dropped the ball, leaving their last two speakers to try and salvage what they could (difficult because in a debate the very last speaker can’t introduce any new points). UTech’s first point was, well, bad. Their speaker tried to challenge the ‘degree’ of penetration and then failed to develop his point properly. Then they brought up the issue of jungle-justice and the need for social change before legal reform and failed to argue that one effectively as well.

UTech's best speaker
UTech’s best, and last, speaker

There is cause to consider how hard it is to argue the opposite side of this debate, so I was on UTech’s side from the start, rooting for the underdog. But there’s so much to take apart in this narrowly focused, black-and-white moot and I’m disappointed that they didn’t run with it. Of course, debaters also have the disadvantage of having to construct structured arguments in a mere fifteen minutes, with limited time to get their points across. I can’t even construct structured arguments on a good day.

UWI won, and not just because they had the easier side to argue. Their speakers (especially the two young men from Mona) were articulate and unflappable, but still. So much more could have been done with this moot – or maybe, as one judge suggested, they needed a different moot. They got a litany of adjective and nouns to define as they saw fit – take it apart and run with it!

One half of the winning team
One half of the winning team

The issue of consent comes up – who can give consent? What exactly constitutes consent? How to protect the victims who come forward? The definition of sex becomes important – is it exclusive to the sexual organs? That definition has changed and continues to change – what constitutes a sexual object? – how can one law hope to wrangle all these variations under one absolute edict?

Following the debate was an open-floor discussion where the audience was invited to share their own opinions on the moot. It was very lively, with ideas being shared on issues like getting victims to come forward, the connotations of ‘force’ vs. the explicit definition of consent, and the use of ‘sexual objects’ (one memorable analogy involved a broomstick and the assertion that since “it’s going the same place as a penis”, it should be classified as rape).

A good portion of the audience was young adults (yay) who appeared interested in the changes being proposed, or at the very least invested in the fight for equal rights. Let’s hope this proposal brings about some of the major changes Jamaica so desperately needs.

**

The Jamaican Joint Civil Society proposed a 21-item list of recommended changes to the Sexual Offence Act 2009 (you can read the full list here, and a more extensive background document here), parts of which were promoted at the debate. I’ve blogged about the issues with our Sexual Offences Act here

When you pick up a newspaper and the front page just pisses you off

This article was on the front page of the Gleaner on June 8, 2013:

Senior Rastafarian Says No to Repealing Buggery Law

And I saw red, but not because of the inherent human rights homosexuality debate. That is NOT the only issue at play here. I got angry because no one actually understands the entirety of what they’re opposing.

A while back on my Emergency Medicine clerkship we had to do a workshop on Sexual Assault, which included researching Jamaica’s (ancient) Offences Against the Person Act and the (slightly less ancient) Sexual Offences Act of 2009. When I say ancient, I mean the Act has been around since colonial times – 1864, to be exact – almost 100 years before we gained Independence. It includes among other things, edicts against obstructing a clergyman in the performance of his duties (for which you can be given up to two years hard labour). But I digress.

Sections 76 and 77 of the Offences Against the Person Act speak about the Unnatural Offence of buggery:

Unnatural Offences
76. Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned & kept to hard labour for a term not exceeding ten years.

77. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of my assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be
liable to be imprisoned for a term not exceeding seven years, with or without hard labour.

I’m going to assume these sections are speaking strictly about adults (i.e. persons over 18) because there are no references to age.

Sections 44-67 of the Offences Against the Persons Act have been replaced by the Sexual Offences Act of 2009, which defines rape as follows:

3. -(1) A man commits the offence of rape if he has sexual intercourse with a woman­
(a) without the woman’s consent; and
(b) knowing that the woman does not consent to sexual intercourse or recklessly not caring whether the woman consents or not.

Pay special attention to gender designations here. In our constitution it is legally impossible for a man to be raped, either by a woman or by another man. You’d think the anti-buggery groups would be all over fixing this. And the consequences for a man convicted of rape?

6.—( 1) A person who
(a) commits the offence of rape (whether against section 3 or 5) is liable on conviction in a Circuit Court to imprisonment for Iife or such other term as the court considers appropriate, not being less than fifteen years;

What can happen to a man is in fact called grievous sexual assault, and the description is a little more graphic:

4.–(1) A person (hereinafter called “the offender”) commits the Grievous sexual offence of grievous sexual assault upon another (hereinafter called the “victim”) where, in the circumstances specified in subsection (3), the offender­
(a) penetrates the vagina or anus of the victim with­
(i) a body part other than the penis of the offender; or
(ii) an object manipulated by the offender;
(b) causes another person to penetrate the vagina or anus of the victim by­
(i) a body part other than the penis of that other
person; or
(ii) an object manipulated by that other person;
(c) places his penis into the mouth of the victim;
(d) causes another person to place his penis into the mouth of the victim;
(e) places his or her mouth onto the vagina, vulva, penis or anus of the victim; or
(f) causes another person to place his or her mouth onto the vagina, vulva, penis or anus of the victim.

And the penalty for an offender convicted of this?

6.—( 1) A person who
(b) commits the offence of grievous sexual assault is liable-­
(i) on summary conviction in a Resident Magistrate’s Court, to imprisonment for a term not exceeding three years;
(ii) on conviction in a Circuit Court, to imprisonment for life or such other term as the court considers appropriate not being less than fifteen years.

For children under 16, the law is very, very clear: anything of a vaguely sexual nature constitutes an offence. And I do mean anything:

(2) An adult commits an offence where he or she, for a sexual purpose, does any act specified in subsection (3).
(3) The acts referred to in subsection (2) are
a) touching, directly or indirectly, with a part of his or her body or with an object, any part of the body of the child; or
(b) inviting, counselling or inciting a child to touch, directly or indirectly, with a part of the body or with an object, the body of­
(i) any person, including the body of the adult who so invites, counsels or incites; or
(ii) the child.
(4) For the purposes of this section an act is done for a sexual purpose if a reasonable person would consider that—­
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual; or
(b) because of its nature and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

So our youth under 16 are fairly protected. . . under the law.

But what about adolescents in the gap between 16 and 18, where the lines of consent blur and where children (because they’re still children) are so very prone to getting into all kinds of sexual scrapes? This is a legal grey area, and crimes are perpetuated on the over-16-under-18 age group because there is very little the law can do in their defense. On top of that, not many young men are willing to come forward and admit they’ve been victims. They can’t even admit to being victims of rape, when that has been the case.

What do you call it when a 17-year old boy is forcibly sexually assaulted by a 40-year old man?

Why is this crime any less criminal than if the victim were female?

Why should the offender be granted any less time?

Are our boys less valuable than our girls? 

The call for a repeal of the anti-sodomy laws is not just a call-to-arms for homosexual rights activists; it is a necessary revision of ancient codes that are hindering rather than helping legal justice. This issue needs to be addressed, and soon. This is not window dressing; the debates will not be pretty. But we are not helping anyone – least of all our young men – by sweeping this whole discussion under the carpet because Jamaican men simply can’t have the question of sexuality out in the open.

I don’t doubt that the Church has the numbers to ensure that the buggery debate never reaches Parliament, Mr. High-and-Mighty Church Leader, but you need to put your petty war with homosexuals aside. There is much more at stake here than your religious morals. Namely, protecting the innocence of our youth.

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Read.Robin stands by her secular moral code and is convinced that the state just needs to tell the church to bugger off.
Click these links to read the entire Offences Against the Person Act and Sexual Offences Act.