MARITAL RAPE: Selective Ownership of a Woman’s Body

If a man physically abuses a woman, there is outcry. If he lays a hand on her and if she presses charges, he will be dragged before the courts, often with no sympathy for his assault on her- Even if they are married. The threshold is lowered to a point of non-existence for a more intrusive type of assault- Rape.

The message sent is confusing and a firm stance needs to be taken. In cases of rape, personally knowing your attacker does not vitiate the attack, so why then should being married to your attacker preclude an offence from being committed?

The words of the traditional marriage vows are:

"I, ___, take you, ___, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and health, until death do us part."

It did not say:

"I, ___, take you, ___, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse, to own your body, for me to do as I wish, even if you are against it. To hurt you and harm you, because of my sick and twisted mindset ...and there is nothing you can do about it, until death (most likely of the wife) do us part”.

One key element of the offence of Rape is consent. If a wife does not consent, that should be it. The union of marriage has created an impenetrable shield, allowing husbands to perpetuate sexual violence against their spouse with the protection of the law.

There has been a steady increase in domestic violence cases, with many persons, not living to tell the tale. A woman is empowered to stand up against physical domestic violence and is told repeatedly, “a man does not own her…..walk away”, however based on the current stance it would appear as if there are levels of abuse, and physical abuse is placed on a higher tier than the unwanted sexual violation of a wife and/or mother, and she will receive no protection if this is the avenue taken by her spouse.

So many persons are living in marriages where the issues if chronicled would surprise many, but a brave face is put on as they struggle to make it work, or give the appearance of making it work- often because of the standards of the church and/or its members.

An issue also arises where a wife is trying to separate from her husband. A key element needed to successfully file a divorce petition is separation for a year (including sexual contact). What happens when the husband simply won’t leave his wife alone through forced sexual contact? In a Divorce application, the parties may still be viewed as separated even if they continue to cohabit in the same house,  but not if they continue having sex with each other. There are therefore several implications stemming from this issue.

The church has missed the mark in their utterances and their continued unequivocal Stance regarding the submission of a wife to a husband to their own detriment. Otherwise Criminal behavior is being encouraged on a weak basis- the husband does not own the outside of the body, so he can be prosecuted accordingly, but he owns the inside of her body, and should not be prosecuted. Selective ownership has no basis in law and it is time for the playing field to be leveled. 

Understanding Self Defence from a Legal Standpoint

Self defence is a complete defence of justification in cases involving all levels of assault. At common law the defence off self-defence operates in three spheres. It allows a person to use reasonable force to:

(a) Defend himself from an attack
(b) Prevent an attack on another person,
(c) Defend his property

Right to defend yourself

Section 23 of The Firearms Act clearly permits the holder of a licensed firearm to discharge said firearm within or about a public place, not only in the lawful protection of his own person or property, but also in the lawful protection of the person or property of others.

It is instructive to note, however, that the protection of life or property has to be lawful. The case law appreciates that the licensed firearm holder who discharges his firearm to protect life or property may not have had time to make entirely rational decisions, given all the circumstances of the particular case; however, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable.

The general principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonable or not).

It is important to note:

                      a) A person who is being attacked should not be expected to 
                   "weigh to a nicety the exact measure of his necessary 
                    defensive action".

b) If the jury thought that in the heat of the moment the defendant did what he honestly and instinctively thought was necessary then that would be strong evidence that only reasonable defensive action had been taken.

c)A jury will be told that the defence of self-defence will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defence.

Excessive force

The issue of a mistake as to the amount of force necessary was considered by the courts  and the law is:"They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable."

No duty to retreat

There is no rule of law that a person attacked is bound to run away if he can. A demonstration by the defendant that at the time he did not want to fight is no doubt, the best evidence that he was acting reasonably and in good faith in self-defence; but it is no more than that. A person may in some circumstances act without temporising, disengaging or withdrawing; and he should have a good defence

It is therefore, a matter for the jury to decide as to whether the defendant acted reasonably in standing his ground to defend himself, or whether the reasonable man would have taken the opportunity to run away.

It is not absolutely necessary that the defendant be attacked first. As Lord Griffith said in Beckford v R [1988] AC 130: "A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike."

Mistake as to Self- Defence

It is possible that a defendant might mistakenly believe himself to be threatened or might mistakenly believe that an offence is being committed by another person, it would appear that such a defendant would be entitled to be judged on the facts as he honestly believed them to be, and hence would be permitted to use a degree of force that was reasonable in the context of what he perceived to be happening.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.

If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury came to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it.

The reality of self -defence in a murder charge

1) It is very difficult for juries to accept this defence in cases where the person who is harmed/killed does not have a weapon or is not armed.

2) The option of manslaughter is often left to the jury which states that the accused did not have the intent to take a life or cause greivous bodily harm (no malice aforethought) but the killing was unlawful.

2) Licensed firearm holders are not automatically protected from murder or manslaughter charges as using a weapon may appear as using excessive force and will be interpreted as being unlawful by the jury.

3) Licensed firearm holders have a great responsibility, and should think twice about discharging their weapon, if under threat, even though the law makes provision for their subjective mind or what they perceive.

June 3, 2016

FALSE RAPE CLAIMS: The stories that are never told...

by: Kymberli Whittaker

“Rape”  is such a dirty word. It connotes feelings of anger, rage and condemnation once uttered or even implied, and with good reason. Rape is an act so abhorrent that it shifts power from the victim to the person committing the act. Rape is about power, men know this and women know this as well.

We warn our females to be careful and try to avoid situations when possible to avoid assaults (as far as it is possible- women are not responsible for being raped EVER), but what about our men.  The sad reality is that men may find themselves at the centre of a false rape accusation and these men are blind-sided as their world turns upside down.

 The truth is some women may choose to lie about rape for different reasons- Men read, learn and protect yourself. Here are a few reasons:

1) To hide consensual sex from a family member or spouse

Shame is a hell of a thing. Some persons instead of admitting when they have fallen prey to their emotional desires or sexual feelings, will lie, cry, and plead the blood of Jesus against their consensual  partner in a tryst.

How could a woman fall for her gardener? How could the person who attends church religiously with their family, have sex with a man of cloth? How could a student willingly admit that she slept with their teacher for good grades to her parents who have sent her to school?

Once discovered by a third party, a woman may blurt out rape, or be pressured to say that they have been violated to alleviate the shame felt from the sexual association. Men if you have more to lose than the woman when having sex- Walk away!

2) “Hell hath no fury like a woman scorned.”

When breaking off a relationship, tact is not a bad thing. Vindictiveness spawned by a bad break up is a common factor that should actually leave men quaking in their shoes. Men, in situations where you are plainly wrong, such as cheating, abuse, etc- You leave yourselves vulnerable and open to attack.

Rape is a crime that often rests on credibility- it is hard to disprove even with physical proof of sex whether a woman has been raped, because there is a mental element of consent, or lack thereof that is essential for the act to be considered a crime . A “Tough back” man is no match for a crying woman on the stand in court. Men embattled in a divorce, beware! Are you fighting for custody of your kids when you have moved on and have a new girlfriend or baby momma? Beware!

“Payback is really a *****”- And the false rape claim is seen as justified punishment for a wandering spouse.

3) The woman is unstable or is a chronic liar

Sex is not going anywhere. Men before jumping into bed, find out more about the person you would like to bed.  A first name and marital status is not good enough. Some ppl are crazy and some others are simply waiting for the opportunity to bed someone of influence so that they can use the art of blackmail to get what they want. Dating before sealing the deal is not a bad move- you may save yourself the trouble of being labeled as a sexual predator in the future.

Women can use a rape claim to their advantage. Remember that once a report is made, you are arrested by CISOCA with no immediate prospects of bail. The more gruesome the details given by the woman, the lesser your chances of receiving bail within a couple months.

Jamaica doesn’t test for DNA to prove that sex with an accused person did not occur- Do not be fooled by these crime shows on TV- doesn’t apply in our context, so it is harder to eliminate a man as a suspect once the accusation is made

Even if you beat the charge, being accused of rape attaches a stigma or stench to your name that is near impossible to get rid of.  Men take heed and beware!

kymberli.whittaker@gmail.com

Self Interest vs Nationalism- The Real Issue behind the Opposition to the DNA Act in Jamaica

While still a teenager years ago, I remember the furor about the protection of a person’s rights and the surprising opposition against the proposed DNA Evidence Act. Being exposed to television shows such as Law and Order where it appeared to be standard practice for DNA evidence to be used to aid in determining an accused’s person’s guilt, I was a bit confused and taken aback at the debate which ensued. Cognizant of Jamaica’s high crime rate and the perceived inability of the State in controlling and reducing crime, the most natural question I asked was “Why is DNA evidence so bad?”

Mulling over the issue back then, I queried whether the Law Makers had something to gain, as so many esteemed politicians were trained Defense lawyers. I pushed that thought out of my mind as I could not fathom that self interst could trump Nationalism. I questioned and received no answers.

The argument that DNA evidence trumps privacy and should not be utilized is flawed. If that is the case for opposition then fingerprint evidence is equally as invasive and should not be collected. The presumption is that an accused person is “innocent until proven guilty”, however that is not an absolute presumption as seen with how the court treats with bail applications, rejecting bail for some offences punishable by imprisonment based on how high-risk the person appears to be. Whether that person will come back to court at the next hearing, interfere with witnesses, or very importantly what the offence is that the person is charged with- Rape and Murder, as one can imagine is not taken lightly.

Our laws were fashioned off the UK and many of their cases are used as leading precedents by lawyers that argue their case before the courts to try and persuade guilt. Their laws have been amended to reflect developments in technology and crime fighting strategies while ours have remained static, contributing to the stagnation of our court system as more crimes are commited in Jamaica, through no fear of repercussions as our criminals simply do not fear ore respect the Justice system.

An accused person is not forced by law to assist the prosecution in furtherance of his right to not incriminate himself, however DNA is a test which assists in the process of non-incrimination of a person who is not guilty. If you do the crime, it should follow logically that you do the time. Using loopholes of the Justice system to facilitate criminal behavior has become a feature of the said system which aids in hindering our development and crime reduction. Is the real aim of the system to get justice for those wronged whether it be the accused or a victim?

The Prosecution has the full responsibility of proving the guilt of the accused, and should do so within a framework which seeks to protect the innocent. The Constitution is not to be used as a mechanism to violate human rights but to protect those rights. So those who actually make a choice, and act on that choice to do something illegal and violate another person’s human rights should not be allowed to slip through the cracks.

There is an issue with witnesses due to our “informer fi dead” mentality so many persons get off Scot free after suffering minor conveniences of jail time before being granted bail, DNA however is irrefutable. Concerns regarding corruption and misuse of DNA evidence by Police or the State need to be addressed. A chain of custody for this evidence needs to be adhered to, so that if there is a break in the chain, the offender can be found and the law can deal with them swiftly. This means that harsh enforceable penalties need to be put in place for persons who collect and handle the DNA, and there should always be an atmosphere of transparency for both the prosecution and Defense.

The DNA bank thus needs to operate at International standards so that samples cannot be compromised and security needs to be on point. There has always been a concern of planting evidence at a seen, this is a real issue which needs to be addressed, as corrupt police officers on different occasions seek to get an “easy” conviction. Perhaps the use of body cameras by Crime Scene investigators needs to become standard practice and evidence not captured immediately on footage cannot be admissible. Maybe I am reaching with my suggestions, but I believe that every problem has a solution, and the use of DNA evidence after so many years of opposition should finally be allowed and embraced in the pursuit of justice for all- both the victim and also importantly the accused. There have been so many situations where persons have been saved from years of confinement due to DNA evidence. If our aim is to protect the guilty who can afford to pay for a good Defence lawyer, then the DNA Act is counterproductive, but if the aim is for true Justice then there should be no problem with it.

Informer Culture is Stifling Jamaica’s Development

by: Kymberli Whittaker

Date: May 15, 2015

On any day, it is highly probable that you interact with several persons who have been accused of a crime, but will never be convicted of it. The person you give way to cross in front of you while driving, the person with whom you conduct business with, buy goods from, parents of children your own kids socialize with, the man/woman across the street. You cannot look at someone and tell if they have committed a crime, there is no “look” that a criminal possesses. Guilty persons are walking around free or on bail who may have actually done the act, but because the person’s in the know refuse to speak out, true justice will never be served.

Show me one country without crime, I bet you can find none, yet Jamaica is seen worldwide as being the murder capital of the world by many. Jamaica, self-proclaimed, top tourism destination has fallen nine spots to rank 76 out of 141 countries in the Global Travel & Tourism Competitiveness Report 2015. Jamaica has so much to offer to visitors and we have the potential to earn millions from this industry, however the fear of crime is crippling our image. The persons who call Jamaica home, there are different ways of coping with our high crime rate while trying to conduct businesses, raise families or generally to maintain a livelihood. Some people have given up on staying abreast of current affairs or news which serves of a stark reminder of reality. Others barricade themselves where possible within comfortable or luxurious town homes or residences which can rival any “5 star” hotel, while consuming media from our foreign neighbours.

It seems as if there is some disconnect from Jamaica’s Reality, as crime seems to be an alien concept unless one is directly affected by it. In a year there may be a few campaigns by different groups pleading for justice, and a few walks and marches as people stand in “solidarity” against crime, most currently the no-tolerance policy against child abuse as stories have emerged of young girls either losing their lives or becoming impregnated at the hands of older men, whether family members or strangers. While participation is good however in opposing crime via presenting a unified front, this is not enough and the reasons many crimes cannot be solved is because of pure talk and no action, and when put to the test there is no talk where it counts- at the police station or in the court room.

From ever since we’ve heard the phrase “informer mus dead!!” But that mentality cannot prevail as we complain about the high crime rate and bemoan the reduced opportunities for advancement in Jamaica.  Criminals are elevated and protected through silence to continue to perpetuate injustices against the massive. Statistics from the Office of the Children’s Registry indicate that reporting of crimes against children has risen, but even after a crime is reported, there must be follow-up. The complainants themselves may choose not to follow-up and eventually the case may be eventually thrown out. The witnesses to crimes flat out refuse to speak out, because of fear of telling the truth and also for not wanting to be labeled an informer. These occurrences have disastrous effects on the pursuit of “Justice” for the person whom the crime was perpetuated against. A visit to communities will yield a wealth of information about the crime with people speaking authoritatively, however when asked to speak out , people say that “mi nah go court”, “a nuh my business dat” and “after mi a nuh informer”. And then the already burdened court system becomes stagnated as cases are put off until another date, over and over again.

Arrests can be made daily but making persons accountable for deviating from the law lies with every one of us. Jamaica has a serious crime problem,  that is the reality. Jamaica is not seen as a favourable place to invest by many, corruption is robbing taxpayers of their hard earned  money as money has to spent to remedy illegal acts. Crime whether white collar or blue collar affects every one of us, so persons from all the different fabrics of society need to have no-tolerance policy towards protecting criminals.

 A shift in mindset is the only way that we can move forward. Talking the Truth does not mean that you are an informer.

Sex Offenders: Do you really know your "neighbour"?

 by: Kymberli Whittaker

Do you know how many sexual offenders, rapists or child molesters live in your neighbourhood? Contrary to the belief of some persons, many sexual offenders and predators don’t live only behind zinc fences and in garrison communities, they also live behind pretty walls, automatic gates and well trimmed hedges.  They could be your friendly neighbor, extra-lesson teacher for your kids, Grocer and even your co-worker and unbeknownst to you they lurk, plan and plot to commit sexually motivated crimes on a day to day basis.

Unfortunately we cannot go into a person’s mind and know the perverted thoughts they harbour and prevent them, but as a nation we should have the power to reduce the amount of dastardly acts by being informed and acting accordingly to protect ourselves and our family from persons who look so innocent but have a convicted criminal record for committing a sexual offence, especially against children.

There has been much debate and discussion over the years about the creation of a Sex Offenders’ Registry to track local offenders. The Sex Offenders' Registry was established as a part of the Sexual Offences Act which was passed into law in October 2009.  However, the regulations for the Registry were tabled in November 2012 but were not put to use because of the absence of a database.  In May 2014, we were told by the Minister of Justice, Mr. Peter Bunting  that the data system to facilitate the Registry was complete and work was to begin to get the stakeholders up to date.

This is awesome news that we are actually making headway after almost 5 years of waiting, however I am concerned about its effectiveness once implemented as this is a collaborative effort between several Government agencies. Our courts need to have efficient reporting procedures and as an entity steeped in the paper or hard copy mentality, they will have their work cut out for them especially as it relates to sending the necessary information for the previous convicts. For this Registry is to work, we need to establish a proper system of entering information on the offender within a timely basis in order to facilitate efficient dissemination.

I anticipate that with this Registry we will be able to see the communities where most offenders live and try to stage an intervention and  if possible to attack the root cause of the problem and prevent others  from walking down that road of perpetuating sexual abuse towards others.

Hopefully the fear of having their name, address, alias, photograph, date of birth and places frequented placed on a list will detract many from committing these type of crimes, and for those who have have already offended, the fear will keep them in line. Sexually motivated crimes are high on the list on crimes where re-offending takes place and this has been ignored for many years, as we falsely hope that the persons released just change their ways and choose not to re-offend. and this is ludicrous. There is no evidence that they receive counseling while incarcerated or special help to understand the issue and prevent it from taking place which helps to contribute to the cycle. 

Now as we know the group JFJ is the Champion for the protection of the rights of different categories of criminals, and they have posited that  “people have served their time and done their punishment”, yet we would be “stigmatizing them and leaving them vulnerable” if their information is made available to the Public.  However on speaking on behalf of my law abiding citizens, I say that  for too long our rights have been ignored, abrogated and treated with disdain. We deserve the right to at least to know how  many sex offenders live where we live; live where we send our children to school,  as  some of our kids have to walk to school daily.  So far we have been taking risks without knowing the odds, and we should be able to take calculated risks and not leave things like safety up to chance.

If the Government is afraid of crimes being perpetrated against convicted persons who have served their time and now roam the streets, this is indeed a valid concern, as Jamaicans really have little tolerance of persons even just accused of rape (although it would seem that persons of the higher echelon are able to get rid of this stain and be accepted with open arms by many upstanding citizens), however knowledge is power and I believe this knowledge can empower us. Names can be withheld from the general public  but be of use to other agencies where this information relating to character is crucial. Also persons who are sex offenders should be prevented from entering certain occupations where they may be placed in a compromising position based on their history and predilections .

This Registry is important  and once implemented will play a  critical part in  Jamaica's development. I am no longer patiently waiting, but I am anxious to see what our Government is coming with, and what terms and conditions will be attached to the implementation. I want to "know" my neighbour. Do you?