By *Jeshua Bardoo
“Undeniably, rape is always an abomination. It is highly culpable, both in the moral sense and in its almost total contempt for the personal integrity and autonomy of the female. Short of homicide, it is the ‘ultimate violation of self’. It is a violent crime because it normally involves force, or the threat of force or intimidation to overcome the will and the capacity of the victim to resist. Along with other forms of sexual assault, it belongs to that class of indignities against the person that cannot ever be fully righted and that diminishes all humanity. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence; the maximum penalty being life imprisonment.” — Madam Justice Hariprashad Charles in The Queen and Curtis Bruce, BVI Criminal Case No. 17 of 2006. Judgment on sentencing delivered on June 4, 2007.
The offence of “rape” can be found under section 123 of St. Vincent and the Grenadines’ (SVG) Criminal Code.
It reads as follows:
“(1) A man who rapes a woman is guilty of an offence and liable to imprisonment for life.
(2) A man commits rape if—
(a) he has unlawful sexual intercourse with a woman who at the time of intercourse did not consent to it; and
(b) at that time he knew that she did not consent to the intercourse or he was reckless as to whether she consented or not.
(3) If at a trial for a rape offence the court has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such belief is a matter to which the court is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.
(4) In subsection (3), a “rape offence” means any of the following namely, rape, attempted rape, aiding, abetting, counselling and procuring rape or attempted rape, and incitement to rape.
(5) For the purpose of this section a woman is deemed not to have consented to sexual intercourse if her consent is obtained by threat or force, or by use of force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act or, in the case of a married woman, by personating her husband.”
SVG’s “rape” provision in its current state violates a multitude of human rights. Due to its narrow definition and scope, many persons who are victims/survivors of rape cannot get justice or proper justice in SVG.
Inherited as a legacy of colonialism, the narrow definition of “rape” under SVG’s Criminal Code, only covers unlawful penile vaginal intercourse, that is, a male penis entering a female vagina without her consent. This definition of “rape” is problematic because firstly, it envisions the act of rape as solely a penis penetrating a vagina, which is not always the case.
Globally, in today’s contemporary society, we now understand that rape can include unlawful oral sex, anal sex and even inserting objects in another person’s orifice (e.g., vagina, mouth, or anus) without their consent.
SVG’s “rape” provision is also problematic because it is not a gender-neutral provision. In essence, it promulgates the view that only male person can be the perpetrator of rape, and only a female person can be the victim of rape, which is not always the case and far from reality. Women can rape men, men can rape other men, and women can also rape other women.
The maximum sentence for “rape” under SVG’s “rape” provision is life imprisonment. However, due to the fact that the definition of “rape” under SVG’s Criminal Code is so narrow, law enforcement officials have no choice but to sometimes perform “legal gymnastics” and seek to deal with acts not currently covered under SVG’s “rape” provision under other offences such as “indecent assault”. In SVG, the offence of “indecent assault” currently carries a maximum sentence of only five years imprisonment if committed on a child under 15 years and two years imprisonment in any other case. There is quite a large gap between a maximum sentence of life imprisonment and five or two years!
I am tired of seeing acts which should be rightly defined as “rape” in today’s contemporary Vincentian society, being brought under other offences such as “indecent assault” or other provisions under SVG’s Criminal Code.
When the New Democratic Party (NDP) was in power, they did not change the narrow definition of the “rape” provision. Now that the Unity Labour Party (ULP) is in power, a narrow definition of the “rape” provision still remains on the books. Both of these political parties have served SVG for very long periods of time and have/had more than enough time to make the relevant change/s.
It is high time that the government of SVG, which is currently being controlled by the ULP, whose leader is Ralph Gonsalves, who is also the Prime Minister of SVG, takes these issues seriously. The ULP is currently the ruling political party, as a result, they have much more resources and power at their disposal to deal with this issue. For several years now, I have been hearing about the sexual offence laws of SVG being revised and to date, no changes have been affected in law. This is quite unfortunate.
Nevertheless, I am also calling on the leader of the opposition NDP, Godwin Friday, to make this issue a priority and have it addressed.
All ministers, senators, those comprising parliament and the executive, I am also calling on them to take action. And if by chance, any another party or leader arises to govern or seeks to govern SVG now or in the future, and this issue still isn’t sorted out by then, I am speaking to them too.
The state, the government and our leaders need to be held accountable for this grave failure in SVG. The lack of progress, in that no legislation has been recently passed and/or proclaimed to amend and fill such a gap and limitation, shows that is it not a high priority in this country. Yet we continue to talk about these issues year after year and every now and then there is outrage when certain incidents come to the public’s attention.
We cannot continue to let our women, girls, men, and boys, suffer in this country, and not have the proper laws and/or legal mechanisms in place to at least give them a fair opportunity to get proper justice and redress.
At the end of the day, our police officers, the office of the Director of public prosecutions/National Prosecution Service, magistrates, judges, other judicial officers, and officers of the court, can only act within the law of SVG.
SVG’s “rape” provision has been weighed in the balances of human rights and is found wanting. This is a great injustice, a travesty to the people of SVG, and we deserve better!
*Jeshua Bardoo is a Vincentian barrister-at-law and solicitor. He is the Founder and President of Equal Rights, Access and Opportunities SVG Inc (ERAO SVG). He has an LLM in international human rights law. He can be contacted via email at [email protected]
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