Imani Tafari-Ama | Decolonising laws and embodied practices

My daughter is looking forward to her sweet 16 birthday next month with great anticipation. It is a kind of coming of age before the onset of adulthood. I am determined to make the occasion a memorable bonding opportunity. This rite-of-passage moment got me thinking, though, about the contradiction entailed in the Sexual Offences Act, which treats children 16 and over, the age of sexual consent, as tactical adults. Of course, this provision also gives licence to some boy or paedophile to imagine that they could be bright enough to make decisions about the schedule for my child to be placed under sexual scrutiny.

Choosing to set the age of consent at 16 is contradictory. At 16, a child has not attained legal adulthood status. A child cannot vote, and as a minor, cannot assume responsibility for the possibility that having sex may result in pregnancy. By default, this social burden falls squarely on the shoulders of parents or the extended family. Children born to teenage mothers live precariously when the adolescent is on her own. For stability, relatives chime in and lend support. Many children born of teenage mothers are raised by grandparents, aunts, sisters, and other womenfolk.

The age of sexual consent is also a gender-specific provision. Boys are not set specific age limits for sexual initiation and do not bear any obvious consequences of being allowed to engage in sex with their female counterparts. In case of pregnancy, the boys’ parents are sometimes de facto, if not de jure supporters in the raising of the child. Often, the babyfathers are adult men who may disappear rather than face the risk of bearing responsibility for fatherhood. Yet sometimes, these unions are love-based and work out, – against the odds.

Same-sex couples are apparently not considered in the conjugation of the age of sexual consent. However, the criminalisation of homosexual acts, also a colonial law, already declares the heterosexist boundaries of the legal provision for consideration of “normal” and “taboo” sexualities. The feminist cliché the personal is political, therefore, is as relevant as ever, especially when tackling the conundrum of sex and social capabilities of its juvenile protagonists.

RAGING DEBATES

Debates have been raging for decades about the efficacy of the age of sexual consent being 16 and the pros and the cons for raising or lowering it. Objectors contend that lowering the age encourages sexual exploitation and abuse of children. On the other hand, those who favour lowering the age limit observe that boys and girls start engaging in sexual activity as early as nine or 10. Defenders of juvenile sexual activity suggest that adults who argue that a lower age of consent is a catalyst for early sexual initiation are burying their heads in the proverbial sand, oblivious of raging hormones and the impetus for sexual pleasure. This endorsement sends a signal to sexual predators that the way is clear to have their way with a child, a legal minor, without sanction. However, someone who has sex with a child who is under 16 years can be charged with statutory rape.

Sexual and reproductive health and rights (SRHR) provide a major platform for gender-justice advocacy. This arena contains numerous causes of anxiety for activists and policymakers alike. Fecundity and fertility issues are tectonic fault lines that threaten to fissure citizen security and relationships. Regulation of the age of consent is rooted in European colonial ownership and control of not only labour of Africans but also bodies, objectified for their reproduction value. Controlling bodies was part and parcel of intersecting patriarchal and racialised restrictions that European men in power exercised over the sexualities of women, men, boys, and girls under the profit-making plantation regime.

Providing 16-year-old girls with the licence to engage in sexual relations also seems to have a class-specific subtext. Clearly, higher education is not supposed to be the primary purview of those pursuing early sexual engagement. If upper-class girls are having sex, they are more likely than girls from underserved communities to be able to access abortion services, locally or abroad, since abortion is illegal in Jamaica. Girls and women from underserved communities who have unwanted pregnancies often explore unsafe abortion options at great risk to personal well-being. Girls and women from privileged backgrounds can also more readily escape the long reach of the social stigma attached to people who are considered cultural cemeteries for choosing termination over carrying an unwanted child.

The legal instrument informing abortion also dates back to the colonial plantation. The law is housed under The Sexual Offences Against the Person Act of 1864, which derives from a similarly named English Act. This law stipulates that “any person who, intending to procure a miscarriage, regardless of whether the woman is with child, unlawfully administers to her any poison or noxious thing or unlawfully uses any instrument or other means to the same end is subject to life imprisonment, with or without hard labour. A pregnant woman who acts in the same way with respect to her own pregnancy is subject to the same penalty”.

HESITANT TO HELP

To this day, health practitioners are hesitant to help women to carry out abortions because of the danger this poses to their licence to practice. In the United States, the leaked draft proposal to overturn the seemingly sacrosanct 1973 Roe v Wade decision that provided protection for women who chose to end their pregnancies is rattling skeletons in many closets. The moral argument favours the right-to-life lobby and poses a threat to those opting for the right to choose termination.

Related to this, infanticide also carried a criminal conviction under colonial law. However, many enslaved women preferred to end their children’s lives rather than subject them to the horrors of enslavement. Historian and former Mayor of Montego Bay, Shalman Scott, documented in an article in the Jamaica Observer that the famous Sabina Park cricketing ground was named after an enslaved African woman of the same name. Sabina was previously owned by Joseph Gordon, a wealthy landowner, who was also the father of National Hero George William Gordon. Sabina Park earned notoriety because she paid the ultimate price for choosing to end the life of her four-month old child. Like many of her peers who chose embodied ways to resist colonialism’s forced systems of subjugation, Sabina Park preferred to defy the domination structures by taking the life of her offspring into her own hands. She defended her decision in the Half-Way Tree court by declaring that she had suffered long under enslavement and did not intend for her child to experience the same fate under Backra’s (European/master’s) watch. Sabina Park was charged with murder and hanged at the place of today’s celebrated Sabina Park cricketing stadium.

These cross-cutting connections pinpoint the importance of decolonising the laws that regulate morals, behaviours, and social relations towards the crafting of more people-centred and culturally relevant pieces of legislation.

- Dr Imani Tafari-Ama is a research fellow at The Institute for Gender and Development Studies, Regional Coordinating Office (IGDS-RCO), at The University of the West Indies. Send feedback to imani.tafariama@uwimona.edu.jm.