Gender Based Violence Against Women in Jamaica: Strides Made since its Adoption of CEDAW.
By Her Honour Mrs. Simone Walker-McFarlane
Senior Parish Court Judge (Actg.) – Jamaica
IAWJ Rising Leader Fellow
“… men gang-raped me. They took me from my office at gunpoint. I am very hurt and sometimes I blame myself. It is very hard to live with, as I think that I am unclean and I hate myself. I will never get over it fully…" recounts the experience of one Jamaican woman, who is not faring well following a brutal gang rape. Violence against women is a pervasive global challenge and is not unique to Jamaica. It is said that three of the top ten (10) rape rates in the world occur in the Caribbean: the Bahamas, St. Vincent and the Grenadines and Jamaica. The rate of sexual violence against women in Jamaica is high and seems to have increased based on the reported cases from some parishes. The Jamaica Constabulary Force Statistics and Information Management Unit conducted an analysis for the parishes of St. Ann and St. Mary. The Unit reports that for the period January 1, 2023 to October 28, 2023, there was an increase in the number of reported offences of rape when compared to the year 2022 for the said period in both parishes. The Unit reported increases of 47% and 400% for St. Ann and St. Mary respectively. As it concerns intimate partner violence, the results from the first national survey on gender-based violence in Jamaica demonstrates a high occurrence rate of 27.8 per cent, with more than one in every four women in Jamaica as having experienced intimate partner violence in their lifetime. 
The argument is that enough is not being done by the state to tackle discrimination against women, which in turn allows societal and cultural attitudes to encourage discrimination and violence. This would be a blatant disregard and breach of their human rights and essentially a violation of the government’s most basic treaty obligations under the United Nations Convention of the Elimination of Violence against Women (CEDAW). CEDAW is seen as the ‘Women’s Bell of Rights’ as it gives prominence to women. This is a most important development in human rights and in particular, around women’s rights. Many countries have ratified the Convention to include Jamaica which did so in 1984. However, an evaluation of its practical enactment is warranted as part of the monitoring and evaluation process of any treaty. The purpose of this paper is to examine Jamaica’s response to the increase gender-based violence against women. In doing so, the paper will seek to examine societal norms and attitudes, legislative changes and the court’s response as it concerns the discrimination of women in this respect. Are the responses from the legislature, regulatory bodies and the Courts adequate? This paper will use a mixed method approach combining a desk review of legislative changes and the judiciary’s response to reduce gender-based violence against women with a cross sectional review of cases of specific offences adjudicated in the courts to triangulate the evidence of Jamaica’s response to the problem.
What is violence against women?
Violence against women means “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” In defining sexual violence, the World Health Organization (WHO) , states that it is “..any sexual act, attempt to obtain a sexual act, or other act directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim in any setting. It includes rape, defined as the physically forced or otherwise coerced penetration of the vulva or anus with a penis, other body part or object.” In its landmark multi-country study, the WHO in 2005 defines sexual violence by an intimate partner in circumstances where a woman was physically forced to have sexual intercourse when she did not want to; had sexual intercourse when she did not want to because she was afraid of what her partner might do; or was forced to do something sexual she found degrading or humiliating.
There are many barriers faced by women to report sexual violence in Jamaica having regard to the cultural norms and attitudes. In some parishes when one hears about a victim being beaten, raped or sexually assaulted, the response is, “What did she do?” or, “It is just a little sex”. In a survey on the subject, those interviewed said that the police would not be understanding and would only visit them as a last resort. In the concise words of one interviewee, “ Police nah come… Police nah come”. The trivialization of the response to a woman being sexually assaulted as just “a little sex” is one of the main challenges in Jamaica, as it is elsewhere, where no one wants to report a case of sexual assault. There are many women who do not report sexual violence to police because they are ashamed or fear being blamed, or not believed or otherwise mistreated.
Legislative and Regulatory Response
Jamaica is a signatory to numerous international and regional human rights instruments. As such, it has an obligation to ensure that the rights of persons are protected and respected within its jurisdiction. One of the commendable steps taken is the launch of the ten (10) year action plan to eliminate gender-based violence. This plan focuses on five (5) priority areas namely: intervention, legal procedures, prevention, protocols for data collection and protection. Arising out of this commitment is the establishment of the Joint Select Committee (JSC) in 2016. The JSC was tasked by the Senate and the House of Representatives to undertake the required statutory review of the Sexual Offences Act and simultaneously the Offences Against the Person Act, the Domestic Violence Act, the Child-Care and Protection Act from the perspective of what provisions they offered to women, children, the elderly and the disabled. Among the issues being debated by the JSC are: (i) the proposal to broaden the definition of rape to include other forms of penetration; (ii) the issue of marital rape; (iii) the proposal to increase the age of consent to 18 years and the need for the inclusion for a close in age gap exception in respect of children under 16 years old who engage in consensual sexual activity with each other; (iv) the proposal to make an exception for abortion in specified circumstances; (v) the proposal to align the penalty for forced anal penetration with that of forced vaginal penetration- (rape), to recognize that forced anal penetration was as serious as the offence of rape as well as to treat forced anal penetration as an element of grievous sexual assault to achieve this and; (vi) the consequences that could possibly flow from making any amendments to the provisions relating to abortion and buggery in terms of the protection that the respective provisions received under the Savings Law Clause in the Constitution of Jamaica.
In July 2023, whilst addressing a regional conference on women’s parliamentary and political leadership in Kingston, Jamaica, the Minister of Foreign Affairs, Senator Kamina Johnson Smith outlined that legislative steps are being considered to protect women. The proposed amendments relate to the Sexual Offences Act in which certain conditions would have to be met in order for a wife to claim rape. Presently, the conditions which have to be met include: spouses have separated and live separate and apart as defined by the Matrimonial Causes Act; there is in existence a separation agreement; divorce or proceedings to nullify the marriage have been filed; acts or threats of physical violence, harm or injury are imposed on a spouse before or during sex; the spouse knowingly suffers from a sexually transmissible disease. When the Act is amended, it is proposed that all pre-conditions for a claim in marital rape will be removed.
United Nations Committee on the Elimination of Discrimination Against Women Eighty-Sixth’s session: Jamaica’s Eighth Periodic Report
At the recently concluded United Nations Committee on the Elimination of Discrimination Against Women Eighty-Sixth’s session, Jamaica presented its eighth periodic report.  The Committee commended Jamaica’s extension of maternity leave to 60 working days. The Jamaican delegation was proud to highlight the promulgation and implementation of the 2023 Sexual Harassment Act which addresses harassment in a number of places inclusive of workplaces and prisons and also addresses unwanted sexual advances, requests for sexual favors, crude behaviors and pornography which would seek to create an intimidating, hostile or offensive environment. It was also highlighted that through the National Strategic Action Plan to Eliminate Gender-Based Violence, the Government opened two State-run shelters for vulnerable women and their children. A helpline for victims of domestic violence which supports access to rescue, accommodation, counselling and legal aid services. It was additionally reported that ten Domestic Violence Intervention Centers by the Jamaica Constabulary Force were established. The centers are managed by trained police officers who would intervene through various methods, inclusive of counselling, referrals and home visits.
It is important to note that work is advancing on the new Domestic Violence Act with a draft Bill already created. However, it has not yet received the approval of the Houses of Parliament.
 A historic training retreat was convened for women parliamentarians, senators from both political parties and local representatives with technical support from ParlAmericas, UN Women Multi-Country Office - Caribbean, the Bureau of Gender Affairs in the Ministry of Culture, Gender, Entertainment and Sport on December 3rd and 4th 2022. The retreat’s focus was on inter alia, setting up of a bi-cameral caucus to review gender equality concepts in relation to legislative work, ongoing gender equality initiatives in Jamaica and opportunities for collaboration among women parliamentarians on important issues such as gender-based violence. This retreat was in response to a request for training by women parliamentarians and senators for the continued implementation of the National Policy of Gender Equality (2011) and in order to achieve inclusive and effective outcomes for their constituents .
Response of the Judiciary
It is theorized that delays in the criminal justice system may result in victims reliving the trauma over a span of several years. Further, it denies the accused’s constitutional right to a fair trial within a reasonable time. The Judiciary has sought to answer this with its Strategic Plan (2019-2023). Noted as a landmark achievement for the Jamaican Judiciary, it has been created for the courts, and marks the first of its kind in the legal history of the Judiciary. The plan is available to the public and is primarily aimed at promoting good governance and protecting the rights of every person.
 “The practice of producing monthly, quarterly and annual statistics, has enabled us to assess the true state of affairs within the system with greater accuracy. This invaluable tool has illuminated the stark systemic inefficiencies associated with case disposition and has set us on a path towards improvement” . Accordingly, trial date certainty is one of the many priorities in effecting good governance to avoid delays and multiple adjournments whereby attorneys, litigants, jurors and the police can be assured that the trial and hearing dates will be adhered to the scheduled commencement date. In furtherance of improved customer service delivery, differentiated case management (DCM), has been introduced in the criminal division of the parish courts. This is a strategy whereby courts manage cases relative to the requirements of the individual cases, taking into consideration the timeframes and judicial system resources. In implementing DCM, the aim is to ensure timely and just disposition of all cases consistent with their specific preparation and case management needs.
With the creation of specialized family courts, the Judiciary of Jamaica continues to play a pivotal role in assisting women inclusive of the most vulnerable members of society who are exposed to trauma. The Family Court is a special court established by virtue of the Judicature (Family Court) Act. The Family court is different from other courts having regard to the fact that it offers social services as part of its structure aiming to promote healthy families. Counselling departments are attached to the Family Court which are especially helpful to women who are the victims of domestic violence. An intake Counsellor may refer a particular case to a Family Counsellor whereby persons may seek to discuss their problems, along with their partners as many times as is necessary to resolve their issues.
For its part, the Jamaica Association of Women Judges (JAWJ) has had several mentorship and outreach programs focusing on women and girls in custody and or detention. Some of these centers include the South Camp Juvenile Correctional and Remand Centre for Girls and the Women Centre of Jamaica Foundation, (WCJF). These individuals are sometimes in custody because of retaliation directly related to violence perpetrated against them.
An analysis of protection and occupation orders can be used as proxies for measurement and deterrents of gender-based violence. These are established proxies utilized internationally.
Prepared by Dr. Denarto Dennis, Court’s Statistician, Jamaica, December 3, 2023
The above table represents a comparative analysis on protection and occupation orders filed in the specialized family courts of Jamaica for the first six months of 2022 and 2023 respectively. Analysis of the data demonstrates that the overall clearance rate for occupation orders was a commendable 84.80% for the first six months of 2022. Protection orders had a commendable case clearance rate of 95.84% in the first six months of 2022, a figure that meets the international standards of 90% - 110% .
Courtesy of Dr. Denarto Dennis, Court, Statistician December 3, 2023
The case activity for selected sexual offences over the comparative period of January – June 2022 and January – June 2023 in the Circuit Courts is summarized in Table 2. Analysis of the data showed an increase in the case clearance rate for all three selected offences. When all three offences are combined, from 81.06% to 84.54% for the 2023 period over the 2022 period, a climb of 3.48 percentage points. It is important to note that the parish courts of Jamaica have an overall clearance rate on sexual offences which exceeded 100% in both 2022 and 2023 for the first six months for both years .
According to the Hon Mr. Justice (Ret’d) Seymour Panton, OJ, CD, “Every single day of the work week the courts are sitting and functioning at every level. That is a fact. And there is robust litigation activity in each every such day. The courts are manned by competent staff and are presided over by people of integrity who are not subject to the dictates of the executive, media houses, or anyone else. The judges are hard-working. They do not just work in the courtrooms and in their chambers during daytime working hours. They work at home at nights, on weekends, and public holidays, and in some cases during their vacation leave…Every single day decisions of all types are handed down in these courts without fear or favour.”
Most human rights treaties including CEDAW, do not have strict enforcement mechanisms. As Vaughan Lowe emphasized, “… If no consequences attach to [breach of international law], we should question whether they are rules of law or statements of policy or aspiration…” Lowe argued that, “…human rights instruments have no effective enforcement mechanism and this would mean that there would not be a strict state responsibility as such. This would lead us to the inevitable conclusion that without state responsibility, there would not be an effective rule of law but rather a set of aspirations which nearly reduce to these human right treaties to New Years’ resolutions to achieve certain goals that almost never transpire.” Jamaica has however demonstrated that there is political will and thus state responsibility as it has made noteworthy progress in implementing policies, social services, a specialized court, and legislation in its efforts to comply with the Convention in protecting the rights of women and girls against sexual violence, other forms of violence and gender inequity. The Judiciary is leading the way in the implementation of measures seeking to reduce delays and the disposal of matters in the courts. As shown in Table 1, the overall picture when both protection and occupational orders are combined over the comparable period, there is a 90% or higher case clearance rate between January and June 2022 and between January and June 2023. The slight decline of 4 percentage points is not statistically significant.
There however needs to be a paradigm shift in the mindset of members of the society who regard these offences as ‘just a little sex’. This would in turn assist persons who are affected by sexual violence in the reporting of such cases, notwithstanding the stigma that is attached. Unrelenting action and attention are crucial to combating violence against women and girls in keeping with Jamaica’s commitment to its obligations under CEDAW.
- “ In the Vicious Cycle of Violence” 6 June 2004 Jamaica Observer, Accessed 24 November 2023 https://www.jamaicaobserver.com/news/in-the-vicious-circle-of-violence/
- “Ending violence against women and girls is essential for communities, societies and whole economies to be prosperous and peaceful”—Executive Director, 31 October 2016, United Nations Women, https://www.unwomen.org/en/news/stories/2016/11/speech-ed-gender-protocol-consultation-in-barbados, accessed 24th November 2023
- Serious Crimes Report for January 1 to October 28, 2023 and comparative period for 2022; Jamaica Constabulary Force, Crime Statistics, https://jcf.gov.jm/stats/ accessed November 24, 2023
- UN Women, One in four women in Jamaica experience intimate partner violence reveals the first national survey, 26 June 2018, United Nations Women https://www.unwomen.org/en/news/stories/2018/6/announcement-jamaican-national-gender-based-violence-survey accessed 24 November 2023
- Jamaica, Sexual violence against women and girls in Jamaica: “just a little sex”; Stop Violence Against Women, Amnesty International; June 21, 2006Index Number: AMR 38/002/2006; https://www.amnesty.org/en/documents/amr38/002/2006/en/; accessed November 25, 2023
- Report of the Special Rapporteur on violence against women, its causes and consequences, United Nations, Economic and Social Council, Commission on Human Rights, New York, 1997 (Unpublished doc. Number E) CN 4/1997/47. Taken from “Violence Against Women: Inadequate Remedies under the CEDAW by Meiraf Girma 3(2) Mizan law Rev. at p. 351
- Violence Info; Sexual Violence; https://apps.who.int/violence-info/sexual-violence; World Health Organization; accessed November 25, 2023
- Claudia García-Moreno Henrica A.F.M. Jansen Mary Ellsberg Lori Heise Charlotte Watts, “WHO Multi-Country Study on Women’s Health and Domestic Violence against Women Initial results on prevalence, health outcomes and women’s responses” (WHO, 2005). file:///C:/Users/simone.mcfarlane/Downloads/924159358X_eng.pdf, accessed 25th November 2023
- Jamaica, Sexual violence against women and girls in Jamaica: “just a little sex”; Stop Violence Against Women, Amnesty International; June 21, 2006; Index Number: AMR 38/002/2006; https://www.amnesty.org/en/documents/amr38/002/2006/en/; accessed November 24, 2023
- ‘World Report on Violence and Health’ Edited by Etienne G. Krug, Linda L. Dahlberg, James A. Mercy, Anthony B. Zwi and Rafael Lozano p. 150 (2002)
- Members of the Houses of Parliament. The Legislature (Parliament) is responsible for enacting and amending laws for the peace, order and good governance of Jamaica.
- 10-Year Action Plan to Eliminate Gender-Based Violence Launched; Permanent Mission of Jamaica to the United Nations; https://www.un.int/jamaica/fr/news/10-year-action-plan-eliminate-gender-based-violence launched#:~:text=The%20Government%20has%20launched%20a,and%20protocols%20for%20data%20collection; (December 2017); accessed 26 November 2023.
- Section 5 of the Sexual Offences Act.
- 12th October 2023, Geneva Switzerland
- Part III of the Act addresses, Forms of Sexual Harassment and Related Prohibited Conduct. Section 10 of the Act addresses Sexual harassment at an institution.
- The Honourable Olivia Grange, the Minister of Culture, Gender, Entertainment and Sport makes a point at the Retreat for Women parliamentarians and Councillors
- United Nations Women, ParlAmericas, Women Parliamentarians Commit to Collaborative Actions to Promote Gender Equality. Press Release December 7, 2022.
- Benchmarking the Future: Courting Excellence, Strategic Plan for the Jamaican Judiciary https://supremecourt.gov.jm/content/strategic-plan; accessed 24 November 2023
- “Continuous Improvement and Sustained Efficiency” Benchmarking the Future: Courting Excellence, Strategic Plan for the Jamaican Judiciary at p. 19
- The JAWJ which was established in 2017, is the local chapter for the International Association of Women Judges, (IAWJ), which has judges at all levels of the Judiciary as its members The IAWJ is a non-governmental, non- profit organization that is committed to equal justice for women in all aspects of life.
- McFarlane J, Malecha A, Gist J, Watson, K, Batten E, Hall I, Smith S. Protection orders and intimate partner violence: an 18-month study of 150 black, Hispanic, and white women. Am J Public Health. 2004; Apr;94(4):613-8. doi: 10.2105/ajph.94.4.613. PMID: 15054014; PMCID: PMC1448307.)
- Prepared by Dr. Denarto Dennis, Court’s Statistician, Jamaica, December 3, 2023
- Courtesy of Dr. Denarto Dennis, Court, Statistician December 3, 2023
- Ibid at 22
- The Hon Mr. Justice (Ret’d) Seymour Panton, OJ, CD ‘On the contrary Observer, our courts are not limping’; (15 January 2023) https://www.jamaicaobserver.com/columns/on-the-contrary-observer-our-courts-are-not-limping/ accessed 27 November 2023
- Vaughan Lowe, International law, (Oxford University Press, 2007) p.119.
- Meiraf Girma, Violence Against Women: Inadequate Remedies under the CEDAW, 3(2) Mizan Law Rev. p. 351.
- Ibid at 21