Sun | May 22, 2022

Gordon Robinson | Enact necessary reforms of the Sexual Offences Act

Published:Sunday | January 9, 2022 | 12:08 AM
What are we doing about the act of gender-based violence usually inflicting a fate worse than battery or death?
What are we doing about the act of gender-based violence usually inflicting a fate worse than battery or death?

Anybody as tired of COVID as I?

Anybody as sick and tired of arguing with commentators who begin tirades against the vaccines with “I’m not an anti-vaxxer but …” then end up sounding very adjacent to an anti-vaxxer?

Anybody as impatient with anti-vaxxers’ selective “data” regarding spikes of confirmed omicron cases in highly vaccinated countries without reference to hospitalisations/deaths in those same countries disaggregated between vaccinated and unvaccinated?

Bah, Humbug! All I can say to them is have fun. This is clearly your pandemic now and you obviously plan to enjoy it. I’m sure you all elected to party hearty with your unvaccinated selves over Christmas (aided and abetted by weak to non-existent Government resistance to Big Business wanting relaxed restrictions).

You seem determined to fill our hospitals with your severe covidity, thus depriving fully vaccinated (despite Government’s logistically nightmare vaccination roll-out) non-COVID patients of the treatment they need. Because, make no mistake, that blasé Government “policy” about limiting the number of beds for COVID patients is a Hippocratic impossibility.

So here we go again. To unashamedly bastardise Oscar Wilde: “The unvaccinated in hot pursuit of the unverifiable.”

Mi dunn wid dem. Like Eek-a-Mouse, mi no know a wha’ do dem. They don’t understand that we’re trying for herd immunity against severe COVID illness/death, NOT herd immunity from the common cold!

RAPE OF WOMEN

So today, let’s talk about more deserving victims of Jamaica’s social decay. I am, of course, referring to vulnerable women of all ages subjected daily to a culture of gender-based violence, especially rape, promoted blindly by pastoral misinterpretation of ancient scripture and enthusiastically by “Dancehall” artistes’ open, unabashed misogyny.

Recently, with much political hype, government promised amendments to the Domestic Violence Act intended to offer legislative protection to women in abusive relationships. In a November 27 release, the J.I.S. hyped it thusly:

“The Minister [Olivia Grange] said that the Government is serious about eliminating all forms of violence against women, and the public can expect ‘more far-reaching changes to come’.”

As Noah sarcastically said to a disembodied voice claiming to be God, “Right!” I look forward to our archaic, creaking justice system leaping into action to implement these, especially as it must be prompted by a majority male JCF that struggles to understand the problem.

There’s also the ballyhooed Sexual Harassment Act (basically addresses unwanted sexual “advances”) that creates a quasi-judicial tribunal (likely to be as swift and unchallenging as court) to hear and determine complaints. But what are we doing about the act of gender-based violence usually inflicting a fate worse than battery or death? Where’s the legislative reform to protect men, women, boys, and girls from the fundamental violation of those who feel it know is rape?

But today, we’ll focus on rape of women because there’s no greater need for legislative attention than the justice system’s attitude to that atrocity. For example, look at how easy it is for men to be acquitted of rape after a trial far more traumatic to the alleged victim than the accused. In Jamaica, the average “man” believes woman is “female” (translation “fi male”) and always “want it”. We inherit this belief from African ancestors reinforced by colonial masters.

Most men of all races, religions, and cultures agree on one thing. Men are superior. Women must submit. Intelligent women have learned how to manipulate weak-minded men’s stupid perspectives. But the laws of men won’t address these biblically instilled psychoses’ evil consequences manifested in sexual assault. And even the most manipulative women can’t avoid these traumatic consequences when men visit them on women.

LANDMARK RULING

In 1975, in a landmark ruling, a male-dominated House of Lords improved defendants’ ability to challenge the mens rea (intention) requirement for rape and callously inflicted even more cruel and unusual psychological and physical trauma on rape victims.

Three of the defendants in DPP v. Morgan were accused of raping the estranged wife of an RAF officer. They claimed to have an honest belief in her consent based on the estranged husband’s assurance that she would be willing but would probably simulate reluctance for her own pleasure. They asserted that the trial court erred in charging the jury that their belief in consent had to be reasonable in order to be valid. The House of Lords ruled that a defendant accused of rape may be acquitted even if he had an unreasonable belief in the victim’s consent. Every other criminal offence required a defense of mistaken belief to be reasonable.

This nonsense has been followed pee-pee-cluck-cluck by Jamaican courts for 45+ years.

In Denjah Blake v R [2014] JMCA Crim 19 , a court of appeal panel comprising Seymour Panton J; Dennis Morrison and Patrick Brooks JJA, as they then were (per Morrison JA), cited DPP v Morgan without demur and held “if a defendant accused of rape believes that the complainant has consented, whether or not that belief is based on reasonable grounds, he cannot be found guilty of rape”.

Five years later, in Loveroy Henry v R [2019] JMCA Crim 43 , a panel comprising Morrison P., Paulette Williams JA and Nicole Simmons JA (AG), per Simmons JA (AG), again cited Morgan’s case, this time with apparent disquiet, but followed its principles faithfully.

In England, the Sexual Offences Act 2003 repealed that fool-fool “defence” and mandated belief of consent must be reasonable. Jamaica’s Sexual Offences Act only excludes honest belief defences extorted by physical assault or threats or obtained by fraudulent representation.

THE CANADA SCENARIO

There’s an interesting legal discussion taking place in Canada today surrounding a similar issue. In 1994, the defence of “extreme intoxication akin to automatism” was created by the Supreme Court of Canada in R v Daviault. The defence also exists in UK but not to a charge of rape.

In Canada, Henri Daviault was acquitted of sexually assaulting a 65-year-old woman with a physical disability after consuming seven-eight beers and a large quantity of brandy. Within a year, Canada’s Federal Parliament responded to massive public outcry by inserting Section 33.1 into its Criminal Code to prevent acquittals for men who voluntarily become extremely intoxicated such that they cannot control their violent acts.

It was passed by Parliament with a preamble explicitly recognising that women and girls are entitled to equal protection of law and security of person under Canada’s Charter of Rights.

Jamaica’s Charter also explicitly guarantees every citizen “the right to equality before the law”, yet our courts still parrot obsolete, discriminatory English common law as if it were Gospel.

Canada’s Section 33.1 has come under fire from defence lawyers for alleged unconstitutionality. Three such cases are pending before the Canadian Supreme Court. Since the law was passed, 62 attempts to raise the “excessive intoxication” defence were recorded by Globe and Mail guest columnists Kerri A. Froc and Elizabeth A. Sheehy in a January 4 article.

They report:

“All but four of the perpetrators were men, and 31 cases involved sexual assault or intimate partner violence – crimes that occur because of women’s inequality … Add to this the 18 cases where women were victims as neighbours, mothers, friends and women just out in the world, and we see that women were victimized in 49 of the 62 cases. While there have been few successful extreme intoxication defences because of Section 33.1, we fear many acquittals if it is struck down ... .”

One case pending before the Canadian Supreme Court involves the 2015 knife attack on his father (killed) and mother (injured) by Thomas Chan while under the influence of a significant number of psychedelics.

In another case, David Sullivan claimed that consumption of a massive dose of anti-depression drug Wellbutrin was a suicide attempt. Instead, he suffered a psychotic episode culminating in the stabbing of his mother.

In the third case, Matthew Brown, high on magic mushrooms and drunk on alcohol when severely beating a neighbour with a broom handle, wanted (as did all three) to argue that he couldn’t be convicted because he was in a state of “automatism”. Section 33.1 prevented them from deploying that defence.

With a big shout-out to Grenadian-born Canadian attorney-at-law Renatta Austin for bringing the Canadian scenario to my attention, it’s obvious Canada’s Parliament has done what it can to protect women from ancient, misogynistic concepts of “honest belief”. Canada’s Supreme Court will decide whether to support Parliament.

What will Jamaica’s male-dominated Parliament do? Wait for another viral video, this time with more serious consequences than one showing a man publicly beating a woman; both making police reports; then police electing not to proceed when they kiss and make up; followed by feverish political activity on the Domestic Violence Act?

Or for once, will it take a proactive, principled approach to the Sexual Offences Act and enact necessary reforms?

Only the Shadow knows what lurks in the hearts of men.

Peace and Love!

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.