Women and Justice: Court: Court of Appeals of Jamaica

Domestic Case Law

Robert Rowe v. R Court of Appeals of Jamaica (2014)

Sexual violence and rape

A 13 year old female complainant was raped in the home of the male defendant, where the complainant was a regular visitor. Despite rejecting the defendant’s monetary compensation to remain silent, the complainant did not disclose the incident until two weeks later when a third party noticed that she appeared to be depressed. At trial, the defendant was convicted by a jury for the offences of rape and indecent assault for which he was sentenced to 12 years and 2 years imprisonment, respectively, to be served concurrently. The jury had been instructed to base its decision on the credibility of the witnesses. On appeal, the defendant argued, inter alia, that there was a presumption of doubt on which the trial judge ought to have instructed the jury regarding the complainant’s credibility. According to the defendant, the complainant had several opportunities to promptly speak to a third party after the incident but did not do so, which should have called the truth of her testimony into question. The Court of Appeal dismissed the appeal because it was in the jury’s discretion whether to believe the complainant. Moreover, the Court, in dictum, noted that it is established that many victims of sexual crimes remain silent for a considerable length of time before making disclosures to third parties, and notwithstanding the lapse of time, the perpetrators of these crimes have nevertheless acknowledged the truth of the allegations made against them.

Jerome Arscott v. R Court of Appeals of Jamaica (2014)

Sexual violence and rape

A young woman was sexually assaulted by a male police officer who encountered the woman while he was picking fruit behind her house. The officer followed the woman into her home, where he exposed his genitals and attempted to penetrate the woman’s vagina despite her resistance. Afterwards, the woman successfully identified him in an identification parade and he was subsequently charged with the offences of assault with intent to rape and indecent assault, for which he was convicted at trial and sentenced to nine months hard labor imprisonment. At sentencing, the trial judge found that the aggravating nature of the sexual offence outweighed the defendant’s mitigating circumstances, such as his status as a police officer. The officer appealed the sentence on the ground, inter alia, that his sentence was manifestly excessive and ought to have been non-custodial. The Court of Appeal dismissed the officer’s appeal because it agreed with the trial judge’s balancing approach, and noted that the maximum penalty that could have been imposed was three years of hard labor imprisonment. Moreover, the Court agreed with the trial judge’s statement that to a impose a non-custodial sentence for a case of sexual assault against a woman would send a wrong signal to both members of the police force and the general population in a society, such as Jamaica, where gender-based violence is prevalent.

R v. Noel Campbell, Robert Levy Court of Appeals of Jamaica (2007)

Sexual violence and rape

While walking on the sidewalk on her way to work, a young woman was forced into a gully where she was raped and robbed at gunpoint by two men in the early hours of the morning. At trial, the two men were convicted after the woman had seen and recognized both defendants out in public after the rape and subsequently reported them to the police. The defendants appealed the conviction on the grounds that, inter alia, the trial judge had failed to adequately warn the jury of the dangers of relying on uncorroborated evidence in rape cases and also that the trial judge had failed to adequately assess the woman’s identification evidence. The Court rejected the appeal, citing precedent that, in sexual assault cases, where the only defense is mistaken identity and the court is satisfied with the complainant’s identification, traditional sexual assault warnings regarding corroborated evidence need not be given to the jury.

Campbell (Peter) v. R Court of Appeals of Jamaica (2008)

Sexual violence and rape

While taking a taxi to school, a 13-year-old girl was forcibly raped by the taxi driver, whom she had previously encountered. After learning about the incident, the girl’s mother reported the driver to the police and he was subsequently convicted at trial for rape and sentenced to 15 years imprisonment at hard labor. At trial, the driver’s defense was one of alibi—a denial of his involvement in the offence. When instructing the jury on the definition of rape, the trial judge omitted a discussion on the element of intent to rape, which would have required the jury to find that the defendant intended to have sexual intercourse with the girl without her consent. On appeal, the driver argued, inter alia, that this omission of an element of rape from the jury instructions rendered his conviction unsatisfactory. However, the Court rejected this argument because the driver’s defense did not challenge whether the girl had consented to the intercourse, instead he argued that he had no intercourse with the complainant. According to the Court, the question of intent to rape is only relevant in cases where there is an issue as to whether or not the complainant had consented, and thus because the driver’s defense was one of alibi, and not consent, the Court concluded that it was not necessary for the trial judge to provide an expanded definition of rape.

Richard Barrett v. R Court of Appeals of Jamaica (2009)

Sexual violence and rape

A 16-year-old girl was walking home from school when a man drew a gun on her, forced her into his home and raped her. At trial, the judge—acting as trier of fact—found the man guilty of illegal possession of a firearm and rape. Because the incident was not corroborated, the judge characterized the case as an issue of credibility. The defense attempted to discredit the girl’s credibility by pointing to discrepancies between her testimony in court and her original statements to the police. While the trial judge had acknowledged that the testimony was inconsistent, the judge also acknowledged that the girl’s rape was a traumatic experience and thus her statements to the police were given under exceptional circumstances. The Court agreed with the lower court that discrepancies are to be expected in cases of this nature and so long as they are minor discrepancies, the witness may still remain credible.