Jamaica

This Act prohibits the employment of women in night work save in certain circumstances. Night work is recognized in the Act as “work in an industrial undertaking during the night.” The total hours of employment of women for both day and night work shall not exceed 10 hours in a 24 hour period. To ensure compliance with the Act and that no exploitation of women occurs, the Act provides for powers of inspection in industrial undertakings, and where it is found that an industrial undertaking obstructs any inspection or is guilty of an offence under this Act, it will be liable to a fine for summary conviction and in a default of payment thereof, imprisonment for a term not exceeding three months. If a proprietor or manager of an industrial undertaking is found to be in contravention of the provisions of the Act, such person will be liable to imprisonment for a term not exceeding six months.

Esta ley prohíbe el empleo de mujeres en el trabajo nocturno, salvo en determinadas circunstancias. El trabajo nocturno se reconoce en la ley como "trabajo en una empresa industrial durante la noche." El total de horas de empleo de las mujeres, tanto de día como de noche, no excederá de 10 horas en un período de 24 horas. Para asegurar el cumplimiento de la ley y que no se produzca ninguna explotación de mujeres, la ley establece poderes de inspección en las empresas industriales, y cuando se determine que una empresa industrial obstruye cualquier inspección o es culpable de un delito en virtud de esta ley, será sancionable con multa por condena sumaria y en su defecto de pago, pena privativa de la libertad de hasta tres meses. Si un propietario o gerente de una empresa industrial se encuentra en contravención de las disposiciones de la ley, esa persona será condenada a prisión por un período máximo de seis meses.

The Child Pornography (Prevention) Act prohibits the production, distribution, importation, exportation or possession of child pornography and the use of children for pornography A “Child” is a male or a female person under the age of 18 years. Child pornography constitutes any visual representation, any audio recording or written material depicting engagement of a child in sexual activity or depicts body parts of child for sexual purposes, or depicts a child subject to torture, cruelty, or physical abuse of a sexual context. A person who has custody of, charge or care of a child and knowingly causes or incites the involvement of a child in the production of child pornography commits an offence and will be liable for a fine or to imprisonment (or both) for a term not exceeding 15 years. The production or distribution of child pornography carries a penalty of imprisonment for a term not exceeding 20 years. Possession of child pornography carries a penalty of a fine or imprisonment (or both) for a term not exceeding 8 years. The receipt of any financial benefit from any offence in terms of the act carries a penalty of a fine or imprisonment (or both) for a term not exceeding 20 years. The act preserves the identity of the victims, thereby preventing any disclosure in relation to the victim. Any person that publishes information in contravention of the act shall be liable for a fine not exceeding one million dollars or imprisonment for a maximum period of 12 months.

La Ley (de prevención) de la pornografía infantil prohíbe la producción, distribución, importación, exportación o posesión de pornografía infantil y el uso de niños para la pornografía. Un "niño" es un hombre o una mujer menor de 18 años. La pornografía infantil constituye cualquier representación visual, cualquier grabación de audio o material escrito que represente la participación de un niño en una actividad sexual o que muestre partes del cuerpo de un niño con fines sexuales, o que represente a un niño sujeto a tortura, crueldad o abuso físico de un contexto sexual. Una persona que tiene la custodia, el cargo o el cuidado de un niño y, a sabiendas, causa o incita a la participación de un niño en la producción de pornografía infantil, comete un delito y será responsable de una multa o de prisión (o ambas) por un período máximo a 15 años. La producción o distribución de pornografía infantil conlleva una pena de prisión por un período no superior a 20 años. La posesión de pornografía infantil conlleva una pena de multa o encarcelamiento (o ambos) por un período no superior a 8 años. La recepción de cualquier beneficio económico de cualquier delito en términos del acto conlleva una pena de multa o prisión (o ambas) por un período no superior a 20 años. El acto preserva la identidad de las víctimas, impidiendo así cualquier revelación en relación con la víctima. Toda persona que publique información en contravención a la ley será responsable de una multa que no exceda de un millón de dólares o pena de prisión por un período máximo de 12 meses.

Section 23 of the Criminal Justice Administration Act states that proceedings regarding accusations of certain crimes shall be held in camera (privately). These crimes include rape, grievous sexual assault, marital rape, sexual intercourse with a person under age sixteen, indecent adult, or involvement in prostitution.

The applicant was sentenced to seven years imprisonment for abduction and robbery with aggravation. In response to his first application for leave to appeal against conviction and sentence, the judge granted him leave to appeal to the sentence, but refused permission to appeal against conviction. The applicant renewed his application for leave to appeal against his conviction. The issue on appeal was whether the indictment erroneously citing the wrong statute warranted overturning the conviction. The offence of forcible abduction can be found in the section 17 of the Sexual Offences Act, and it was formerly an offence addressed in section 56 of the Offences Against Person Act. The latter was repealed when the Sexual Offences Act passed. Although the sections are not identically worded, they create the same offence of taking away a woman, against her will, with the intent of having sexual intercourse with her. The indictment in this case had incorrectly stated that the offence was in violation of section 56 (which had been repealed at that point). Nonetheless, the Court of Appeals decided that the error was not fatal to the conviction, as an amendment would have been permissible. This leads to the conclusion that as long as indictment errors are related to the form, and not the substance, then there is no prejudice to the appellants.

The applicant pleaded guilty before the Circuit Court of Westmoreland for the offence of having sexual intercourse with a girl under the age of 16, in violation of section 10(1) of the Sexual Offences Act. He was in a serious relationship with the underage girl, but the matter was brought to the attention of the police when the complainant discovered she was pregnant and there was a dispute regarding the defendant’s paternity (tests showed he indeed was the father). He then argued that he was lured and tempted by the complainant, who would attend to his shop in revealing clothes and make sexual advances to him. The grounds for the defendant’s application was that the four-year sentence was manifestly excessive and that the judge was obliged to indicate, as a matter of law, the sentence that would have been imposed if the applicant had been convicted at trial and use that as a starting point for taking into account the fact that the applicant had plead guilty. In addition, his counsel highlighted as mitigating factors: the girl was just six months away from the age of consent and the sexual intercourse was consensual. His counsel also argued that the judge did not take into consideration the character and antecedents of the applicant, as well as the classic sentencing principles of retribution, deterrence, prevention and rehabilitation. However, the Court decided that, although the indication of a starting point for sentencing would have been desirable, they do not see the omission as being fatal to the reasoning underlying the sentencing. They also highlighted that it’s clear that Parliament has recognized this offence as a serious one, and their commitment against it. This case is particularly important because the Court stated that Jamaica has particular difficulties in dealing with offences involving young girls constantly being abused and exploited by older men, and that they have to get the message out that the children must be allowed to transition into adulthood without any molestation. Furthermore, the court stated that the pregnancy of the girl must not be taken as a mitigating factor, because that would send the message that a man who gets the girl pregnant is likely to be treated more favorably by the Court. Finally, the Court insisted that these pronouncements, in the context of the alarming local circumstances, should be guiding principles in sentencing these matters and cases.

On 24 May 2013, the applicant was found guilty of the abduction and rape of a 14-year-old girl. He had a good relationship with the parents of the girl and thus was a trustworthy person to her. The applicant’s first appeal application was denied. He renewed his application and the Supreme Court of Criminal Appeal granted the application. This time his conviction was quashed, the sentences were set aside, and the Court ordered a new trial at the next sitting of the Circuit Court. The applicant criticized the quality of the representation given by his counsel at the trial, arguing that his attorney did not provide an adequate defense and did not take full instructions from him. The attorney defending the applicant at the first trial argued that the applicant was properly defended, that the prosecutor also submitted that the defense was adequate and that, as the case turned on the contest of credibility between the complainant and the applicant, the jury’s verdict would have been the same, regardless of any omission by the defense counsel at the trial. Despite the seriousness of the alleged crime, the Court held that the applicant was denied the substance of a fair trial and quashed the conviction, setting aside the sentences, without doing a balancing test between the rights of the 14-year-old girl who was a victim of a crime, and the sex offender’s due process rights.

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.

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.