Knowingly infecting someone with HIV could become a crime in Jamaica. This will only happen if the government accepts a recommendation made by a parliamentary committee that has been reviewing several pieces of legislation–the Offences against the Person Act, the Sexual Offences Act, the Domestic Violence Act, and the Child Care and Protection Act–over the last two years.
The committee acknowledged there was a deficiency in the law in relation to the deliberate spreading of HIV – the virus that causes AIDS – and other sexually transmitted diseases. And it said the Offences Against the Person Act should be amended to make it a criminal offence for someone to willfully or recklessly infect a partner with a sexually transmissible disease which can inflict serious bodily harm, as is the case in other jurisdictions like Canada and the United Kingdom.
The committee made several other recommendations. Among that was a deletion of Section 5 of the Sexual Offences Act, which contends that rape cannot occur within the context of a marriage, unless conditions set out in the provision were met. “This was viewed as placing married women in a disadvantageous position, when compared to other women in relationships,” the committee’s report said. However, it said it had decided against recommending a change to legislation related to forced anal penetration because it could affect existing buggery laws.
“We wanted to include a maximum penalty of life imprisonment for forced anal penetration, and sought to achieve this by recommending that non-consensual anal penetration be treated as an element of grievous sexual assault, with an expressed intent that this should not be construed as impliedly amending or repealing any provision in the Offences Against the Person Act, since this would be a different offence from buggery,” it reported.
“We were advised that taking this approach may not have the desired effect, because any attempt to amend the law, so as to recognise difference between consensual and forced anal penetration, could be interpreted as impliedly amending the buggery law, thereby creating the possibility that the provision could lose the protection under the Saving Laws Clause, and could therefore be open to challenge.
[. . .] It further recommended: aggravated sentencing for the murder of pregnant women, as well as other vulnerable individuals including the elderly, people with disabilities and children; a new offence of ‘predatory sexual assault’ in cases where a sexual assault victim is a child under the age of 12 or someone with a mental disorder; prohibiting the employment of children in massage parlours, betting, gaming and lottery activities, and the promotion of parties and events outside of commercial sale within an establishment; prohibiting corporal punishment in all schools, public institutions for the care, instruction or guidance of children in the care of the State, and in all public places; and expanding the court’s ability to make a Parental Order to bind parents over for the good behaviour of a child, with a penalty of being sent to parental seminars.
However, it refused to increase the age of consent from 16 to 18; make incest gender neutral; decriminalise living on the earnings of prostitution; restrict judges’ discretion in allowing evidence of sexual history; and approve detention of children below the age of 12 in juvenile correctional centres or remove the special authority under which children under 12 can be detained in a juvenile correctional centre.
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