In England, when King Henry VIII broke with the Catholic Church, much of the former ecclesiastic law tried in the ecclesiastical courts had to be revised and incorporated into secular law to be tried by the State.

This included many sexual offences such as the “acte for the punishment of the vice of Buggerie”, punishable by death, passed as an Act of Parliament during Henry VIII’s reign. It was England’s first civil sodomy law.

While any man or woman could be convicted under the Act, it was same-sex convictions that were the most common in that era.

Upon the ascension to the throne of the Catholic Queen Mary in 1553, this Act was briefly brought back into the ecclesiastical courts. It was Queen Elizabeth, who reinstated it into civil law in 1563.

Nearly 300 years later, England replaced the Buggery Act of 1533 with the Offences Against the Person Act 1828. However, the new Act merely narrowed the offence, only to male same-sex activity (not women), which was still punishable by death.

This law remained in force until the Offences Against the Person Act 1861, which replaced the death penalty for buggery with, instead, life imprisonment or hard labour “for any term not less than ten years”.

Then, in 1967, the United Kingdom Parliament repealed this 1861 buggery law for England and Wales. It is England’s King Henry VIII’s 1533 Buggery Act that provided the foundation for what many present days religious extremists refer to as sodomy laws that were exported around the world under British colonial rule during slavery and which, nearly 500 years later, Jamaica still has on its laws books.

It is the transition of this 1533, 1563, 1828, and 1861 buggery law that remains in our legislation that is creating the inequality with which we treat rape with men versus women in Jamaica, and why so many are reluctant to change the definition of sexual intercourse in our law.

In April 2021, a 13-year-old girl from Golden Grove in my constituency was on her way to her grandmother. She was approached by a young man who was allegedly known to her, who she told the police dragged her to an unfinished house, where he and four others forcibly had sex with her in her anus.

The five, two 16-year-old boys and three men, aged 18, 20, and 23, were charged with buggery, not rape. They were brought before the court to answer to charges of buggery, abduction, and grievous sexual assault.

I remember visiting the little girl after this heinous incident. I spoke with her and other members of her family. She was not the only little girl I have encountered who has gone through this experience. Additionally, I have met with boys who have been sexually abused.

In all my interactions with these children, apart from the physical scars and pain, they all convey that they feel ashamed, afraid, and anxious about the present and cry about their future. While the girls talk and say what happened, the boys will say only a few words or remain silent.

Currently, our definition of grievous sexual assault alludes to anal sex “when a person penetrates the anus or vagina of the victim with a body part other than the penis or an object manipulated by them… places his or her mouth on the vagina, vulva, penis or anus of the victim or causes another person to do same”.

Meanwhile, the buggery law defines anal sex as an “act of buggery” which criminalises “any male person who, in public or private, commits or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour”.

The conviction for rape, as presently defined, is life imprisonment with a minimum of 15 years.

Here lies the problem: The inconsistency and multiple definitions and sentences in our laws regarding forced sex.

Moreover, the buggery law, while in place for male-to-male private and public activity, is being used to charge males who have anal sex with females.

It is all very confusing, unjust, and inequitable. We could fix these anomalies if we changed the definition of sexual intercourse to include other parts of the body, which would facilitate many of these sexually violent acts to be charged as rape.

What’s more, the old fines and sentences are no longer relevant, and the disparities in them are other examples of why we should make the act of rape gender-neutral.

So what do we do in a country whose legislators consented to the Church’s will to have ecclesiastical/colonial laws remain when I and others raised the matter at the joint select committee tasked with making amendments to the Sexual Offences Act for changes to the definitions to give victims justice given what we see and know is taking place in our society?

We never give up. That’s what we do. In an era when sexual violence is pervasive across our society, outdated, archaic, and impractical legal definitions will not suffice if we are to have equal protection for our boys and girls.

This is why I tabled a private member’s motion in Parliament on June 11, 2024 week calling for a gender-neutral definition of rape in Jamaica.

“Whereas in our law, rape is defined as a man committing the offence if he has sexual intercourse with a woman without her consent or knowing that she does not consent or reckless disregard for her consenting.

“Whereas in our Sexual Offences Act, sexual intercourse is defined as the entry of the penis to the vagina (only).

“Whereas if the same man uses an implement or any other body part to penetrate her vagina, mouth, or anus, it is considered grievous sexual assault. Or if he uses his penis to penetrate anywhere else on her other than her vagina, he may not be technically charged for rape in Jamaica, but rather grievous sexual assault.

“And whereas in our law, it is only a man that can rape a woman, and a man cannot experience rape in Jamaica (whether by a man or by a woman), which is presenting a legislative dilemma that is creating inequitable legal consequences surrounding how we treat rape in this country.

“And whereas because our legal definitions have been unchanged for centuries, many boys and men who have been, or are being raped and sexually abused by men, continue to suffer in silence and do not come forward out of fear of being stigmatised or thrown in jail, even though they are the victims.

“Be it resolved that we acknowledge and confront the fact that many of our boys and men are raped and change the law to give them redress to give equality in our treatment of men and women in Jamaica.

“And be it further resolved that we modify our legal definition of sexual intercourse to make the act of rape in Jamaica gender-neutral.”

I know this is a sensitive and controversial topic. However, it is one we must begin to understand, contemplate, and take action on if we are to help give equality in how we treat rape against our men and women and stem the tide of the sexual violence perpetrated against them.

Let’s stand on the right side of history.

Lisa Hanna is Member of Parliament for St Ann South Eastern, People’s National Party spokesperson on foreign affairs and foreign trade, and a former Cabinet member.