Creating Regional Organizations to Support the Adoption of Sexual Offenses Acts in Africa

By: Lauren Zachry

Recent news has focused on very public and violent rapes in South Africa.  Attention has been on the need for increased protection of women.  In many cases, the first step towards this end is the introduction of laws designed to reduce sexual violence.  The second step is proper implementation of these laws.  Sexual Offenses Acts (SOA) are designed to consolidate a country’s existing sexual offense laws, sometimes by redefining crimes like rape to include marital rape, anal and oral rape, and sexual conduct with minors and other vulnerable populations.  The consolidation is meant to better protect vulnerable groups, including women, children and the mentally disabled, from becoming victims of sexual violence. The United Kingdom passed the first known SOA in 1956, and over the past 55 years many other countries have followed suit.  African countries only began discussions of SOAs at the end of the 20th century and have since passed legislation in Kenya (2006), South Africa (2007), and Sierra Leone (2012).  These laws have often taken many years to move from inception to passage.  In South Africa, even though discussions began in 1999, the SOA did not pass until 2007.  In Uganda, Parliament introduced an SOA in 2004, but the legislation has yet to be adopted.  By comparison, Sierra Leone passed its SOA after only a two-year debate.   Despite the implementation of these acts, some countries with an SOA still have high instances of sexual violence.  In January 2013, the BBC suggested that South Africans would never be shocked by rape and women were still not protected by the SOA.  One month later, the violent rape of a 17-year old girl finally pushed South Africans to recognize the extent of rape within the country and call for change.

The Caribbean may be a helpful model for regions in Africa, where a regional organization was created to increase dialogue about SOAs and other prevention policies among Caribbean nations.  One of the most difficult parts of creating new legislation is determining which issues are important and how to mitigate implementation challenges.  Often overlooked are the inherent biases, such as the patriarchal culture in South Africa.  The Caribbean is an example of how regional discussions regarding sexual violence and how a piece of model legislation can encourage countries to pass SOAs.  In the Caribbean, Trinidad and Tobago created the first SOA in the region and helped establish a regional organization to create a sample SOA for the other Caribbean countries to follow.  Regional organizations can be instrumental in shaping legislation within multiple countries. However, although model legislation encourages positive reform, countries may adopt aspects of the model that are based on cultural bias or do not meet the needs of the adopting country.  Countries who adopt a model are sometimes “sluggish” about going through a continual reform process.

In 1986, Trinidad and Tobago was the first country in the Caribbean to adopt an SOA.  As a founding member of the Caribbean Community and Common Market (CARICOM), Trinidad and Tobago played an influential role in the development of model legislation focusing on women’s rights.  Since Trinidad and Tobago founded CARICOM and had passed the only SOA in the region, the Legal Services of the Caribbean Community used Trinidad and Tobago’s SOA to create the Caribbean’s Model SOA.  Drafted in 1991, the Caribbean’s Model SOA has increased sexual violence awareness and has led to the adoption of SOAs by five Caribbean countries: Antigua and Barbuda (1995), the Bahamas (1991), Barbados (2002), the Commonwealth of Dominica (1998), and Jamaica (2009), which used the Model as guidance.  All of the SOAs contain similar structures and many of the same provisions, such as rape, incest, intercourse with a minor under 14, and a weak marital rape provision.  However, there are also subtle differences among the seven SOAs.  The Model SOA, along with Antigua and Barbuda, Trinidad and Tobago, and Jamaica have gendered definitions of rape where a perpetrator must be male, whereas the Commonwealth of Dominica, Bahamas, and Barbados have a gender neutral definition. Many of the Caribbean countries have also begun to incorporate changes in social attitudes and awareness regarding sexual health, such as AIDS and STD prevention, in their legislation.

In the 1970’s, women hosted two major events in Trinidad and Tobago: a television mini-series and a three day “Rape Seminar,” in order to raise public awareness of rape. The women’s movement and legislative updates made in other Commonwealth countries triggered the creation of the Legal Reform Commission in 1971.  The Commission took 15 years to reach its main goals of drafting and passing one large piece of legislation that covered all sexual offenses and to bring the law in Trinidad and Tobago more in line with changing societal values.

In Trinidad and Tobago, public opinion was a huge influence on the development of the SOA, from inception to passage.  The Commission released a proposed bill in 1985 and provided an opportunity for public comment on the legislation.  A debate ensued on television, in newspapers and in public forums, which focused on the criminalization of rape within marriage. After much compromise, the watered down version of the marital rape provision said that a husband could only be guilty of rape if there was a legal breakdown of the marriage.  The lack of regional discussion and support meant that Trinidad and Tobago relied exclusively on internal discussion, thereby creating legislation that reflected the patriarchal society of the era.

The Jamaican SOA adopted many provisions from the Model SOA, as well as the SOA in Trinidad and Tobago, such as a provision that allows for the prosecution of a homeowner who permits the defilement of a child on the premises.  Most of the Caribbean states have similar statutes that either require reporting of sexual offenses against minors, or prohibit the act of permitting sexual intercourse with a minor on the premises. However, the Legal Services of the Caribbean Community excluded the prohibition of sexual intercourse with a minor in private homes in the Modal SOA, even though Trinidad and Tobago’s SOA included this protection.  Since many of the countries have such provisions, it is apparent that the Trinidad and Tobago SOA, as well as other regional SOAs, have an important impact on new legislation.  Accordingly, Jamaica exemplifies that open dialogue and an active regional body can help countries learn from neighbor nations and efficiently adopt and implement SOAs.

On the other hand, wholesale adoption of a model can have a negative impact on an SOA if the country adopts the weaknesses of the model.  The SOA in Jamaica offers slightly stronger protections for wives than the Model SOA, yet the marital rape provision remains limited to cases in which the spousal relationship is in some way dissolved.  This is a relic from the outcry of men in Trinidad and Tobago in 1985.  Nevertheless, it slightly expands the marital rape provision to include husbands who knowingly transmit STDs through sexual intercourse with their wives.

Sexual violence remains prevalent in many African countries.  An SOA alone cannot stop rape, prostitution, or human trafficking, but having all sexual offenses in one act can help prosecutors and judges better protect victims of sexual violence.  The Caribbean is an example of how model legislation can help ease adoption of protective policies.  Additionally, the exchange of ideas between neighboring countries can also assist with development of new policies and implementation.  Other regions, such as Africa, the Middle East, or Central America, should consider engaging in inter-regional dialogue in order to adopt and implement a model SOA.  These discussions can also help lead to the creation of SOAs specific to each country’s needs to protect vulnerable populations within their borders.