In Jamaica, Rape is when a male has sexual intercourse with
a female without her consent with the intention to have sex with her without
her consent or with indifference or recklessness, meaning, not caring whether
or not she consents …” There are thus three essential elements under Section 3
(1) of the Sexual Offences Act (SOA) for
a person to be convicted of rape
1) Sexual
intercourse must take place (This definition of rape does not include anal
or oral penetration or penetration with an object other than a penis)
2) No consent-
The female does not agree to engage in that activity
3) The Man is
indifferent or does not care to ensure that the female consents ( A man
cannot be “raped’ either by a man or woman under Jamaican Law)
Rape is a crime of basic intent, and based on the elements
of the offence, one has to look at the accused man’s subjective intention, to
see whether at the time of the incident, he HONESTLY and GENUINELY believed
that the woman was consenting to the act. This is a very important point,
because even though a woman may say she did not give her consent the court will
look at the circumstances which led up to the act.
Coitus would also be classified as rape, where a woman believed
that she was having sex with a particular person but through pretense, or fraudulent concealment of
identity, another man is the one who benefits from this mistaken consent.
It would be clear then that if held up at gun point, or if
a female was threatened that there would be no consent. Obvious resistance and
objections by the female are indicators as well, which can be used to show that
a reasonable man could not have believed that
the female wanted coitus to occur.
The line becomes blurry when persons are in a relationship compared with a
stranger-encounter type situation, where the “He-said vs She-Said” scenario
arises with little or no evidence to prove that a rape did or did not occur.
There is an offence of Marital Rape detailed in Section 5 of the SOA, however
it is best for males to take extreme care when engaging in sexual activity,
even with their wives.
The Penalty if found guilty, is a maximum sentence of life
imprisonment with a minimum term of 15 years. There are however mitigating factors which may
reduce the years of a conviction. Some considerations are the age of the
offender, his general circumstances, his previous good character, his mental
state at the time of the offence, the actual circumstances of the offence and a
plea of guilty.
Being charged with rape can have debilitating impact on a
person’s life as even if found innocent, there is often a stigma attached. Word
to the wise: Think and ensure that there is consent before engaging in sexual
activity or else you may be guilty of rape.
Kymberli Whittaker | BA, LLB (Hons)
Attorney-at-Law
Kingston | Jamaica
8 Website: www.whitewhittaker.com
Thanks for the insight mi lady, however what about entrapment? How best can males safeguard themselves or do we have to walk with a written consent form before we engage in coitu? Also,what happens if during intercourse she decides to say I want no more and the male continues is that then also rape as he may just wanted to 'finish'?
ReplyDeleteThanks for the insight mi lady, however what about entrapment? How best can males safeguard themselves or do we have to walk with a written consent form before we engage in coitu? Also,what happens if during intercourse she decides to say I want no more and the male continues is that then also rape as he may just wanted to 'finish'?
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