Jamaica

WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN JAMAICA IN RELATION TO GENDER-BASED VIOLENCE?

• Duty to comply with ratified international human rights conventions
• Duty to comply with the Constitution as the supreme law

WHAT LAWS ADDRESS GENDER-BASED VIOLENCE?

• DOMESTIC VIOLENCE ACT 1995
• SEXUAL OFFENCES ACT 2009
• THE CHILD PORNOGRAPHY (PREVENTION) ACT 2009

HELP FOR SURVIVORS

• GETTING HELP UNDER THE DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1995
• CRIMINAL TRIALS FOR SEXUAL OFFENCES

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A. WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN JAMAICA IN RELATION TO GENDER-BASED VIOLENCE?

Duty to comply with ratified international human rights conventions

State actors and lawmakers in Jamaica have a legal duty to comply with the terms of the international human rights conventions that Jamaica has ratified. Jamaica ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on October 19, 1984 and ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women on December 14, 2005.

Jamaica has a legal obligation to protect women and girls from domestic violence and sexual violence including sexual harassment. The State is required to put the necessary legal and administrative mechanisms in place to adequately protect women and girls from these forms of violence and to provide them with access to just and effective remedies. There must be sustained efforts by the State (such as continuous training of law enforcement personnel and judicial officers, sensitizing the media, educating the public) to challenge the stereotypical attitudes dominant in Jamaica which help to perpetuate violence against women and girls.

Duty to comply with the Constitution as the supreme law

The Constitution of Jamaica 1962 is the supreme law. It guards the human rights of all persons within the country and holds the State accountable for violation of human rights. Gender-based violence threatens women’s right to life and to security of the person. The obligation mandated by the Constitution to protect the human rights of persons within the country extends to a positive obligation on the State to protect women and girls from domestic violence and sexual violence.

B. WHAT LAWS ADDRESS GENDER-BASED VIOLENCE?

The laws which address gender-based violence in Jamaica are:

• Domestic Violence Act 1995 which has been amended by the Domestic Violence (Amendment) Act 2004

• Sexual Offences Act 2009

• Child Pornography (Prevention) Act 2009

• Offences against the Person Act and

• The common law

The legal framework which protects women and girls from gender-based violence includes the Constitution, Acts of Parliament and rules from the common law. Some acts of violence which cause physical injury amount to a criminal offence (for example assault, wounding) and may be prosecuted under the Offences against the Person Act and under the common law. The domestic violence legislation provides protection from physical and sexual violence, but it is not meant to exclude the criminal laws or replace criminal proceedings. Rather, it is to expand the range of options which are available to victims of domestic violence.

Jamaica does not have legislation which specifically deals with sexual harassment. However, the common law can be used to provide remedies to persons who are victims of sexual harassment in the workplace by reliance on the law of torts (duty of care) and the law of contract (breach of implied trust/constructive dismissal).

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I. DOMESTIC VIOLENCE ACT 1995

The law governing domestic violence in Jamaica is the Domestic Violence Act 1995 which was amended in 2004. This Act creates a wide range of speedy and effective remedies aimed at preventing domestic violence. By virtue of the amendment in 2004, the domestic violence legislation now offers greater protection for children, provides for the making of maintenance orders and has widened the range of persons who can seek relief under the legislation by including persons in visiting relationships.

A magistrate can grant:

• a protection order that prohibits abuse and molestation, excludes the abusive person from the home or workplace etc.

• an occupation order which gives a right to remain in the household residence

• Other orders relating to counselling, the use of furniture and household effects, payment of rent, mortgage, utilities etc

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II. SEXUAL OFFENCES ACT 2009

The law governing sexual offences in Jamaica is the Sexual Offences Act 2009. This Act repeals the Incest (Punishment) Act and certain provisions (sections 44 to 67) of the Offences against the Person Act. It has new provisions dealing with rape and other sexual offences. It also provides for the establishment of a Sex Offender Registry. It is important to note that although this Act was passed in 2009, many of its parts did not take effect until 2011.

Offences recognized under the Sexual Offences Act 2009 include:

• Rape
• Grievous sexual assault
• Sex trafficking/procuration
• Sexual offences in relation to children
• Sexual offences in relation to persons with mental impairment

• Incest
• Introduction of the Sex Offender Register and Sex Offender Registry

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OFFENCES

Rape

Rape is defined as where a man has sexual intercourse with a woman without her consent knowing that she does not consent or is reckless as to whether she consents. If a woman agrees to have sexual intercourse because she is threatened of physical assault or because she is given false information about the nature of the act she is consenting to, then the law does not recognise this as consent and the sexual intercourse would be deemed as rape. A person who commits the offence of rape may be imprisoned for life. The minimum sentence that this person can receive is imprisonment for fifteen years.

Marital Rape

Marital rape is defined as where a man has sexual intercourse with his wife without her consent knowing that she does not consent or is reckless as to whether she consents. The law recognizes protects against marital rape only where certain circumstances exist. These are: where the parties are separated or where proceedings to dissolve the marriage or have it annulled has begun; where the husband has been ordered by the court not to molest or cohabit with the wife; or where the man has sexual intercourse with his wife knowing that he suffers from a sexually transmitted infection.

The penalty for the offence of marital rape is imprisonment for life. The minimum sentence that a person can receive for this offence is imprisonment for fifteen years.

Attempt to commit rape

Attempting to commit rape is a criminal offence. This carries a penalty of imprisonment for seven years. If a person attempts to commit rape and at the time of the attempt he was armed with a dangerous weapon, he may be imprisoned for ten years.

Grievous sexual assault

Forcing a person to have oral sex, anal sex or to put an object in that person’s vagina or anus is now recognized as grievous sexual assault. If a person agrees to have any of these acts done to her because she is threatened, physically assaulted, deceived as to the nature of the act etc, then the law does not recognize her agreeing to the act as consent. The act still amounts to a grievous sexual assault. Where the victim is under sixteen years of age, it is irrelevant whether that person gave consent to the act.

The penalty for committing grievous sexual assault is imprisonment for up to three years if the person is convicted in a Resident Magistrate’s Court. If the person is convicted in a Circuit Court, the maximum penalty is life imprisonment; the person must be sentenced for a minimum term of imprisonment for fifteen years.

Attempt to commit grievous sexual assault

A person who attempts to commit grievous sexual assault may be imprisoned for three years if convicted in a Resident Magistrate’s Court and seven years if convicted in a Circuit Court. If at the time of the attempt the person was also armed with a dangerous weapon, he may be imprisoned for ten years.

Procuring violation by threats, drugs etc.

Procuring a person to have sexual intercourse or to be the victim of a grievous sexual assault, by threats, intimidation, false pretences, or by the administration of drugs etc., is a criminal offence. The penalty for this offence is imprisonment for fifteen years.

Procuration

It is a criminal offence for a person to procure a person to become a prostitute or an inmate in a house of prostitution. The penalty for doing this is imprisonment for ten years or a fine or both such fine and imprisonment.

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Sexual offences in relation to children

Children under sixteen years of age cannot in law give consent to sexual intercourse and a wide range of other sexual activities. They are however vulnerable to sexual violence and sexual exploitation. It is a criminal offence for anyone to have sexual intercourse with a child who is under sixteen years of age. This is commonly known as statutory rape. It is also a criminal offence for a person to attempt to do so. If a parent or guardian of a child causes or encourages that child to be sexually abused, that parent or guardian may be divested of all authority over the child and the court may appoint a new guardian for the child.

Sexual intercourse which child under sixteen years of age

A child under sixteen years of age cannot legally consent to sexual intercourse. The penalty for having sexual intercourse with a child who is under sixteen years of age is imprisonment for fifteen years.

If the person charged with this offence is twenty three years of age or younger and that person can show that he had reasonable cause to believe that the child was sixteen years of age or older, the person will have a defence to the charge.

Adults in a position of authority

If an adult who is in a position of authority over a child has sexual intercourse with that child, the adult may be imprisoned for life. The convicted person cannot be sentenced to term of imprisonment which is less than fifteen years.

Procuration of children

It is a criminal offence for a person to procure or attempt to procure a child to have sexual intercourse or participate in an act which amounts to grievous sexual assault with any other person either inside or outside of Jamaica. Anyone who does this may be imprisoned for fifteen years or fined or be subject to both such imprisonment and fine.

Any member of the Jamaica Constabulary Force above the rank of corporal may take into custody without a warrant any person whom he has good cause to suspect of having committed, or of attempting to commit the offence of procuration.

Abduction of Child with the intent to have sexual intercourse
Any person who takes or attempts to take a child out of the custody of his or her parent or guardian with the intention that that child will have sexual intercourse with o engage in acts of Grievous Sexual Assault with one or more persons is guilty of an offence is liable to ten (10) years imprisonment.
It is a defence if the person doing the abduction had a reasonable cause for believing that the person was over 18 years of age. 

New offences: sexual interference and sexual grooming

The law now criminalizes the sexual touching or interference of a child and the sexual grooming of a child. If a person for a sexual purpose touches or interferes with a child, that person may be imprisoned for ten years. Sexual grooming of a child is where an adult having met or communicated with the child under sixteen years old on at least two occasions, then proceeds to intentionally meet the child or travel to meet the child intending to commit a sexual offence against that child. The penalty for sexual grooming of a child is imprisonment for fifteen years.

A child cannot in law consent to sexual grooming or to sexual touching or sexual interference.

Legal obligation on owners, occupiers of premises

The obligation to protect children under sixteen years of age from defilement extends to all owners, occupiers, managers of premises and persons in control of premises. It is a criminal offence for such adults to encourage or allow a child under sixteen years old to be on their premises for the purpose of having sexual intercourse or engaging in any sexual activity which amounts to an offence under the legislation. The penalty for doing this is imprisonment for fifteen years.

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Sexual offences in relation to persons suffering from mental disorders

Some persons who suffer from a mental disorder or who are physically disabled by reason of their disorder or disability are unable to give consent to sexual activities. There are certain circumstances in which the law deems that persons suffering from mental disorders or certain physical disabilities are unable to give consent to sexual activity. If a person by reason of a disorder or disability is: (a) unable to understand what the act is; or (b) is unable to decide whether to participate in the act or allow the act to take place; or (c)unable to communicate that decision, then the person cannot in law give consent to the activity.

It is a criminal offence for a person who knows that another person suffers from a mental disorder or physical disability to have (or attempt to have) sexual intercourse with that person where the person is deemed incapable of consenting or where the person did not consent to sexual intercourse. This offence carries a penalty of imprisonment for fifteen years.

Incest

Incest by both males and females is prohibited at law with more severe penalties being applied in situations where the victim is a child. Sexual intercourse between daughter/son, granddaughter/grandson, sister/brother, aunt/uncle or niece/nephew is prohibited. It is interesting to note that incest can only be committed with the opposite sex. It is irrelevant in the eyes of the law whether the familial relationship is whole blood or half blood.  Incest carries a maximum penalty of life imprisonment and attempts to commit the offence is punishable by a maximum ten year incarceration sentence.

Incest with a child or a person over the age of 16 with a mental disorder

Where the offence is committed against a child or with a person over 16 with a mental disorder by a person who has authority or guardianship over the victim the court may make an order taking away that person’s authority over the victim. The court further has the authority to appoint any person to be the guardian of the victim, in the case of a child until he/she reaches the age of majority or any lesser period. The court may also refer the matter of guardianship to the Children’s Court.

Anonymity

Any person making an allegation that they have been the victim of rape or any other sexual offence under the Sexual Offences Act 2009 will remain anonymous during their lifetime unless the court grants permission for the person’s identity to be revealed.

Abolition of Common Law Presumption of Incapacity

On June 30^th, 2011 Part VI of the Sexual Offences Act came into force. Under this part the presumption of incapacity was abolished. This means that whereas previously the law presumed that a boy under 14 could not commit rape or other sexual offences involving vaginal or anal intercourse, the court is now no longer compelled to make this presumption.

Sex Offender Register and Sex Offender Registry

The day to day management of the Sex Offender Registry lies with the Commissioner of Corrections and the Sex Offender Register is maintained therein. The Sexual Offences (Registration of Sex Offenders) Regulations of 2012 provide for the establishment of Sex Offender Registry Registration Centres to service designated areas as outlined in the Regulations.

Where a conviction is secured for one of the specified offences as listed in Schedule 1 of the Sexual Offences Act 2009 there is an onus on the court administration in which such a conviction was secured to furnish the Sex Offender Registry with the name of the offender and the particulars of the conviction, this information is then recorded on the Sex Offence Register. It must be noted that under the Sexual Offences Act not every instance in which a person is convicted of a specified offence is it automatic that the particulars must be recorded on the Sex Offender Register, some discretion lies with the judge (not necessarily the judge who tried the matter) who is guided by the Act as to how to exercise his or her discretion.

Once an offender, who has committed one of the specified offences, is released from the custody of a correctional facility the superintendent of that correctional must notify the police and the Sex Offender Registry.

Persons found guilty of a specified offence, but, insane at the time the offence was committed and therefore not legally responsible for their actions, or, released from custody pending the determination of an appeal, must report within three (3) days after being categorized as such and not being in lawful custody to the Sex Offender Registry Registration Centre that serves the area in which he/she resides.

After the initial report is made to the Sex Offender Registry Registration Centre subsequent reports must be made in the following circumstances:

1. Within 14 days of having changed his or her address
2. Within 14 days of having changed his or her name
3. At any time between 11 months to 1 year after having made his or her last report.

If a Registered Sex offender intends to be absent from his main or secondary place of residence he or she must notify the Sex Offender Registry Registration Centre of the particulars of his or her absence i.e his or her departure from his or her main or one of his or her secondary addresses, arrival at new location and arrival back to his main or one of his or her secondary addresses within fourteen (14) days of each of these events.

No Registered Sex offender is allowed to leave Jamaica without reporting to the Sex Offender Registry Registration Centre.

Any non-compliance with the reporting or notification requirements is an offence under the Sexual Offences Act and the offender is liable to summary conviction in a Resident Magistrate’s Court to a fine not exceeding one million Jamaican dollars or twelve (12) months imprisonment, or both.

III.THE CHILD PORNOGRAPHY (PREVENTION) ACT 2009

The Child Pornography (Prevention) Act prohibits the production, distribution, importation, exportation and possession of child pornography. It recognizes a wide range of offences and has provisions in place to help protect child victims during the legal proceedings. It further authorizes a Justice of the Peace to sanction the search of premises where it is suspected that offences under the Act are taking place. Below is a summary of some of the offences and their penalties under the Act. .

Summary of offences and their penalties

• Involving or using children in the production of child pornography carries maximum penalty of imprisonment for fifteen years or a fine.
• Producing or distributing child pornography carries a maximum penalty of imprisonment for twenty years.
• Possessing child pornography carries a penalty of imprisonment for eight years or a fine or both such imprisonment and fine.
• Receiving a financial benefit from any offence under the Act carries a maximum penalty of imprisonment for twenty years, a fine or both such fine and imprisonment.

C. HELP FOR SURVIVORS

I.GETTING HELP UNDER THE DOMESTIC VIOLENCE ACT 1995

Where do I apply for an order?

You should make an application for a protection order or an occupation order at the Resident Magistrate’s Court or the Family Court. You do not need an attorney to make the application for you.

Will the person who is abusing me be informed that I have made the application?

Yes. The abusive person against whom you are seeking the order must be formally made aware that you are seeking an order from the court. The abusive person must be served with a copy of the application for the order and also notice of the date at which, and the time and place at which the application is to be heard. This is called notice. In certain circumstances the court may grant a temporary or an interim order for your protection even though the abusive person has not been given notice.

How does the law define domestic violence?

The law does not provide a definition for domestic violence. However, violence which causes physical or mental injury amounts to domestic violence. At home or in the domestic setting, many women are slapped, choked, shoved, hit with a fist or other object, kicked, forced to have sexual intercourse, threatened with knives or persistently intimidated by their partner or former partner. These are all acts of violence and the law protects against them.

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What types of orders and protection can I get?

The orders available are protection order and occupation order.

Protection order

The protection order is an order from the court. It prohibits the person who is abusing you from doing so. It further prohibits that person from engaging in certain activities such as: molesting you, using abusive language towards you, following you, making phone calls to you, entering or remaining in your home or your place of work.

Occupation order

An occupation order gives you the right to live in the home and prevents the abusive person from living there.

Additional Orders

Order for use of furniture etc

If you are granted an occupation order the court may also grant you permission by means of a further order for the use of the furniture, household appliances and household effects. Counselling order

The court can recommend that you or the abusive person or both of you receive counselling.

What must I prove to get the order?

Firstly, you must first establish that you qualify to seek relief under the Domestic Violence Act 1995. In order to qualify you must fall into at least one of the following categories:

• you are or were married to the abusive person

• you are or were living together with the abusive person as husband and wife although not married to each other

• you are in a visiting relationship with the abusive person

• you are a member of the abusive person’s household

Secondly, you must prove that the abusive person is engaging in, has engaged or threatens to engage in conduct which amounts to domestic violence towards you.

What factors will the court take into account in deciding whether to grant the order?

If you are applying for a protection order, the court will consider whether the person against whom you are seeking the order has used violence against you or whether in all the circumstances the order is necessary for your protection.

If you are applying for an occupation order the court will consider whether the order is necessary for your protection or whether the order is in the best interest of the child.

How long will the orders last?

These orders are not permanent. Any of the parties to the proceedings can apply to the court for the order to be discharged.

Do these orders affect anyone’s ownership of property?

No. These orders do not affect a person’s right to ownership of property.

Can I get any monetary order for my support of my children’s support or compensation for injuries?

Yes. The court may also make an order for maintenance. It may do this of its own volition or you can apply for this order to be made. The maintenance order can be made for your benefit or for any member of the household. The maintenance order is to be made in accordance with the Maintenance Act and it will be made only where there is no maintenance order already in force. The duration for the maintenance order will however not be longer than the duration of the protection order or the occupation order.

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What are interim or ex parte orders?

When you make an application to the court for an order, the abusive person is to be given notice of your application. However, in certain circumstances the magistrate may grant an order for your protection even though notice is not given to the abusive person. The magistrate may do this where she is satisfied that the delay may cause risk to your personal safety or serious injury or undue hardship.

The order which the magistrate makes in this circumstance is called an interim order. This is an order which is pending the hearing and determination of the proceedings. It is not a final order and is intended to last for a limited period. A copy of this order must be served on the abusive person and he should be notified of the date on which the court intends to have the actual hearing.

What happens if the protection order is breached?

It is a criminal offence for a person to breach a court’s order. On a first conviction for breaching an order, he person may be fined up to $10,000 or be imprisoned for six months or he may receive both such imprisonment and fine.

What powers do the police have under the Act to protect me from domestic violence?

A police officer may arrest without a warrant a person whom he has reasonable cause to suspect has committed a breach of the protection order. Before a police officer makes such an arrest he must however believe that the arrest is necessary for the protection of the person for whose protection the order was made. There are certain matters that a police officer should consider in deciding whether to make an arrest.

How will my privacy be protected during the court proceedings?

The court can hear in the matter in camera (in private) and exclude any person from the court while the matter is being heard.

There are also restrictions on publication of reports of these proceedings. The details of your case should not be published except where the permission of the court is granted to do so. The penalty for publishing a report without the permission of the court is a fine of $25,000.00. Publication of reports for bona fide professional or technical nature or is intended for circulation among members of the legal or medical professions, officers of the public service, psychologists, marriage counsellors or social welfare workers is exempted from this restriction.

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How does the law ensure that the rights of the abusive persons are protected?

The abusive person must be given notice of the application for an order and has a right to be heard by the magistrate to answer the allegations made. Where the court makes an order against the abusive person, the abusive person has the right to apply for it to be discharged or its conditions varied. The abusive person as well as the person who applied for the order also has the right to appeal the court’s decision concerning the making of an order or the refusal to make an order.

II. CRIMINAL TRIALS FOR SEXUAL OFFENCES

Is there any provision to protect the privacy of a survivor of sexual violence?

The identity of a survivor of a sexual offence is protected in legal proceedings. If you are the victim of a sexual offence, there should be no written publication or broadcast available to the public during your lifetime which may lead members of the public to identify who you are. This restriction may be removed in only certain circumstances. A person who contravenes this provision may be fined $500,000.00 or imprisoned for six months or be subject to both such fine and imprisonment.

Is my past sexual history relevant?

The accused person is allowed to mention your sexual activities with him. However, he is not allowed to bring evidence of your sexual activity with other persons except where the court gives him permission to do so.

Must there be independent evidence to confirm my account of the violation?

Corroboration

No.

You are concerned with what the law describes as corroboration. Corroboration is independent evidence which implicates a person accused of a crime by connecting him with it. In sexual offences cases, judges were required to warn the jury that it was dangerous to convict a person upon the uncorroborated evidence of a woman who complained that she was the victim of a sexual offence. [1] The reason for this warning was the mistaken belief or widely held perception that women often lie about being raped. Judges are no longer mandated to give a corroboration warning in sexual offences cases. In R v Gilbert (2002) 61 WIR 174, the Privy Council decided that the question whether to give a corroboration warning in sexual offence cases is a matter for the discretion of the trial judge.

The corroboration warning is not mandatory in Jamaica. The Sexual Offences Act expressly provides that is not necessary for the trial judge to give a warning to the jury as to the danger of convicting the accused person where there is no corroboration of the evidence of the person who is complaining of the offence. The judge may however choose to give a corroboration warning if he thinks it is appropriate to do so.

[1] P. Murphy, Murphy on Evidence (11^th edn, Oxford University Press 2009) 635