Opposition unimpressed with 'painful and troubled' passage of Sexual Offences Bill

LEADER of Opposition Business in the Senate, Senator AJ Nicholson, has attributed the "painful and troubled" passage of the Sexual Offences Bill to sheer hard-headedness on the part of the Government.

Debate on the Bill, which will repeal the Incest (Punishment) Act and several provisions of the Offences Against the Person Act, dates back to 1995 when an Offences Against the Person (Amendment) Bill and an Incest (Punishment) (Amendment) Bill, covering rape, incest and other sexual offences were tabled and referred to a Joint Select Committee. That committee failed to reach an agreement on several amendments, and the bills fell off the Order Paper of the House at prorogation.

They remained stagnant until retabled by Nicholson in 2006 and referred to another Joint Select committee whose report also fell off the Order Paper prior to the 2007 general election, which the Jamaica Labour Party won.

Speaking once again during the debate on the amalgamated Bill in the Senate on Friday, Nicholson argued that the stubborn refusal by the Government to follow the tradition of debating reports of joint select committees had given rise to a number of consequences "including the struggle the Bill continues to encounter through Parliament".

The former Attorney General said such a debate would have given parliamentarians the opportunity to gain a proper understanding of the concepts used and have input in the content of the Bill as well as provide further insight for the drafters.

"The outright rejection by the government of the urgings of the Opposition to debate the report has given rise to a nest of quite avoidable problems," Nicholson said, noting that one such recommendation to pass the Bill and enact separate legislation to establish the Sex Offender's Registry, had been slighted by the Government to its own peril.

"The joint select committee specifically warned against any such route being taken, for it would delay the entire process, as we have seen come to pass," Nicholson rebuked.
"One is left to wonder at the slighting of such a powerful recommendation; it has caused continuing delay in the enactment of the Act," he said.

"The Opposition is by no means impressed by the process that has been adopted by the government since that report was tabled in June 2007; the route taken has caused avoidable delays, a meandering and troubled journey through the Houses," Nicholson said, pointing out that even after the Senate had deliberated, the Lower House would also be perusing the provision.

"We dare to hope it will not come back to us seeking our approval for further changes," he said.

In the meantime, he said the Opposition would prefer if the offence of Rape in the Act had been dealt with under a separate section from the offence of Grievous Sexual Assault. He further suggested that the term Indecent Assault used in the Bill in relation to sexual offences against children be defined.

In addition, Nicholson said attention should be paid to the use of the word intercourse and penetration in section four of the Bill so as to avoid giving license to buggery unwittingly.

"Intercourse is to be used in relation to sexual intercourse, other activities are referred to as penetration of the victim and we note several references where the word penetrates is used instead of intercourse, "Nicholson chided.

"If that change is not made it will not only disrupt the philosophy that undergirds the Bill, it will also leave the door ajar by sending mixed signals ...that door for many reasons must be made to become and remain fully closed in this legislation," he continued.

He was supported by colleague senator Naval Clarke, who said "what we are doing here is giving license to buggery... we have to be careful... we know the majority of the Jamaican public how sensitive they are".

Under the Act, sexual intercourse refers solely to penetration of the vagina by the male organ. Carrying out that act forcibly, constitutes rape. A separate offence - Grievous Sexual Offence - has been created to deal with circumstances where the offender either penetrates the vagina or anus of the victim with a body part other than the penis or with an object or forces another person to do so to the victim. This distinction in a direct attempt to keep buggery, which is punishable in Jamaica with up to 10 years in jail at hard labour, an offence.

The Sexual Offences Bill provides for, among other things:
. a statutory definition of rape;

. the abolition of the common law presumption that a boy under 14 years old is incapable of committing rape;

. protecting the anonymity of the complainant; and

. for the offence of rape to be gender-neutral meaning it can be committed by either male or female and against both male and female.

It also sets out the circumstances under which a spouse who has sexual intercourse with the other spouse without the spouse's consent will have committed the offence of rape.

The debate continues next Friday.