The Colonial Legacy of the Offenses Against the Person Act in Jamaica, West Indies

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Table of Contents

Introduction
Importance of the Topic
The Offences Against the Person Act (OAPA)
Decolonization
De Facto Law
Conclusion and Further Research
References
Footnotes

Introduction

Colonial legacy has left significant marks on the society of numerous nations. One of the most prevalent colonial laws was the Offences Against the Person Act of 1861 passed by the United Kingdom Parliament and adopted by colonies around the world in the following years. This paper will examine the impact of the legislation on Jamaica, West Indies in the social context of abortion by tracing the colonial history and outlining both past and present abortion laws on the island under the influences of colonialism. The second half of the paper, to be completed next semester, will study efforts to change the abortion laws in Jamaica and the modern opposition to those efforts. There is a possibility that in naming the opposition to expand abortion access in Jamaica, I will also explore the colonial origins of the opposition to abortion access.

Importance of the Topic

The topic deals primarily with postcolonialism which is the aspect of accounting for and combating the residual effects of colonialism on cultures, including social and legislative. The postcolonial theory is critical to explore in a wide variety of contexts in the modern world when societies and cultures are struggling with many of the post-colonial influences including systemic racism, inequality, and appropriation. However, recent years have seen more cultures ascertain their identity by dropping the shackles of colonial influences through this postcolonial exploration.¹ Access to abortion is a fundamental human right and affects primarily women who are much disadvantaged in developing nations such as Jamaica. Exploration of post-colonial legal frameworks can identify shortcomings and provide the scholarly foundation for nations influenced by the Offences Against the Person Act to begin shifting away from such discriminatory and restrictive practices.

The Offences Against the Person Act (OAPA)

The Offences Against the Person Act (OAPA) was written and passed by the UK parliament in 1861. As its title indicates, the bill consisted of multiple statutes which combined offenses against the person, a legalese term which meant any crime that caused direct physical harm or force applied to another human being. However, besides typical crimes such as assault and homicide, the bill reflected actions that were considered crimes at the time such as abortion, and certain sexual acts such as sodomy. Great Britain continued to rule multiple colonies in the 19th century, and British law commonly became colonial law as well. Jamaica, which was a British colony until 1962, adopted OAPA on January 1st, 1864.² As seen in the figures below, the text regarding abortion between the original UK OAPA bill and the one adopted and still considered law in Jamaica (last amendments in 2014) are nearly identical with minor differences regarding sentencing.

Jamaica had been a British colony from 1655 to 1962. For the majority of its early rule, the colony consisted of a small white population overseeing the native population and African slaves left behind by the Spanish, labor used to harvest natural resources including the valuable sugar. Due to this state, English values and law were essentially imposed on Jamaica without debate. OAPA was introduced 30 years after the abolition of slavery in the British Commonwealth. However, millions of Africans were still used for cheap labor, abused, and had no rights in Jamaica. The legislation lacked moral authority, targeted the poor former slave populations to ensure the availability of supply of cheap labor. The irony remains is that African women during days of slavery claimed their reproductive freedom through abortions and infanticide to prevent their children being born into slavery, but OAPA essentially sought to delegitimize and continues to deny that right to the descendants of slaves in Jamaica today.³

One element to note is that the wording of the legislation is vague. While it lists actions that unlawful, it does not state what is considered lawful. Any woman attempting to self-induce abortion or any person/clinician attempting to aid her are to be charged with felony and could face life imprisonment. While it is unclear how often this penalty is applied, some high-profile cases have seen doctors being arrested. Nevertheless, the wording makes it unclear if the service can be provided, leaving it to the discretion of health providers, and creates dangers of unsafe practices. However, that means that persons who are able, can visit private health facilities with abortions being performed by clinicians in sanitary conditions, while those unable to afford it must rely on dangerous, unofficial providers or homemade concoctions to induce miscarriage.⁴

The de facto practice ongoing in Jamaica today is largely due to the legal case in English law – Rex v. Bourne in 1938. As a background, the UK Parliament passed the Infant Life (Preservation) Act of 1929, which was largely a separate bill for the s. 58 of OAPA regarding abortion, but now made it legal to terminate the pregnancy to save the mothers life. In Rex v. Bourne, the patient was not in immediate peril, but the gynecologist terminated the pregnancy in good faith believing otherwise the patient would be physically and mentally affected.⁵ Notably, the Abortion Act of 1967 (after Jamaican independence), legalized abortion in the United Kingdom when pregnancy is terminated by registered medical practitioners. In 2019, Parliament officially repealed The Offences Against the Person Act 1861.

Decolonization

After the abolishment of slavery in early 1800’s in the British Commonwealth, Jamaicans gained suffrage. While the British maintained power, the locals began to promote nationalism and gradually form legislation. In 1943, the labor leader Alexander Bustamante won an electoral victory, and established a more liberal constitution. He became premier in 1962, and that year the UK Parliament granted the island its independence. The OAPA had such a profound impact around the world due to the British colonial rule. Britain had one of the most influential legislative frameworks, not just on its colonies. However, in the colonial aspect, legislation was often used to create systems of domination and control. Areas of reproduction controlled by OAPA were reinforced through legislation as an element of colonial power relations. OAPA was so influential that 11 out of 18 African former colonies, 9 out of 11 in the Pacific, and 9 out of 12 in the Caribbean still maintain some form of the law to govern its abortion regulations.⁶

Some previous colonies have moved towards liberalization of the legislation, while others such as Australia, Canada, and New Zealand are decriminalized abortion completely. It is suggested that the determining factor of a country in approaching OAPA legislation is their previous relationship with the UK as “white settler colonies”. Some countries were permitted much greater judicial and political autonomy, while others were subjected to strong control due to colonial risk. However, it is the latter that continues to uphold the legislation, largely due to patriarchal and religious influences. The persistence of OAPA to modern day indicates the pervasiveness of British colonial law which positioned itself as the arbiter of reproductive morality with rippling effects on both law and culture.⁷

De Facto Law

As it currently stands, in Jamaica, it is a felony for anyone to perform an abortion on others or themselves using any instrument, medication, or means that can cause a miscarriage as described in the language of OAPA. As far back as 1975, the Ministry of Health in the country made indications that it supports to legalize abortions in cases of rape, abuse, and incest.⁸ Latin America and the Caribbean has one of the highest rates of estimated annual abortions in the world of 65 per 1000 women. In 2011, in Jamaica alone, 22,000 abortions occurred despite being illegal, but complications from abortions was the 8^th leading cause of mortality, indicating that many were conducted unsafely and potentially non-clinical settings.⁹

Under de facto law, abortions can be carried out in Jamaica, requiring written consent of two physicians corroborating that the abortion is necessary to preserve mental or physical health of the mother. However, despite the de facto practice, many physicians are unwilling to perform the procedure due to fear of criminal prosecution. “While ‘common law’ then seems to allow for abortion under special circumstances, this apparent middle ground remains too contentious.”¹⁰ The issue is also a socio-economic one due to the criminal risk of the procedure and general lack of specialists or equipment, an abortion can cost upward of $7,000. These are performed in small, private clinics where the population and law enforcement know that the procedure is offered de factor.¹¹ However, such a large sum of money is affordable to few in a developing country. The government seems to be well-aware of the situation as proclaimed by Minister Hanna in 2004, “…abortion is still illegal in this country, and a woman’s right to choose whether or not to keep her pregnancy is in effect exercised by those who can afford a private doctor.”¹²

In modern day, Jamaica has long struggled with the debate on abortion. Strong views continue to support the outdated and highly conservative law, largely from the religious community. It has become a topic of great public divide. Polls demonstrate that a slight majority believe that no amendments should be made for abortions, even adding specifications such as in cases of rape, health concerns or incest.¹³ Calls have been ongoing for years to make appropriate changes since a high-profile cast in 2005 when a 14-year-old girl was hospitalized and died after a botched home abortion. The law has become a discussion of political leadership and socio-economic divide. The advocacy of public figures, journalists, and human rights advocates have led to politicians such as Minister Hanna to voice their opinion on amending the law publicly. Members of the Jamaican Parliament have been bringing up the issue in committees. However, a large portion of political leaders are quiet on the matter due to the strong influence of religious organizations on the island which operate under the guise that Jamaica is a theocracy and block any progressive laws for the modern pluralistic society which does not abide to the religious dogma. ¹⁴

Conclusion and Further Research

The Offences Against the Person Act represents the institutionalized influence of UK’s abortion legislation during the Victorian era. While it represented punitive moral and social characteristics of the time, it effectively became law in British colonies such as Jamaica, where it remains virtually unchanged to this day in legally outlawing abortions. OAPA has been fundamental to institutionalizing anti-abortion practices in legal frameworks where it remains unchallenged as a consequence of colonialism as well as the religious influence of modern Jamaican society. While de facto law indicates that abortions can be performed, it creates a number of social division issues and safety concerns due to OAPA still being a relevant legal framework that can be utilized to charge. It is a facilitation of reproductive injustices that colonialism has created. Further research will be addressed in the second half of the paper, to be completed next semester, will study efforts to change the abortion laws in Jamaica and the modern opposition to those efforts. There is a possibility that in naming the opposition to expand abortion access in Jamaica I will also explore the colonial origins of the opposition to abortion access.

References

“Abortion: By Any Means Necessary.” Jamaica Observer, 2019, Web.

Dutch, Rosie. “The Globalisation of Punitive Abortion Laws: The Colonial Legacy of the Offences Against the Person Act 1861.” CFFP, 2020, Web.

Elam, J Daniel. “Postcolonial Theory.” Literary and Critical Theory, 2019, Web.

Macnaghten, J. Rex v. Bourne. 1938, Web.

Matthews, Glenmarie, et al. “Abortion Attitudes, Training, and Experience among Medical Students in Jamaica, West Indies.” Contraception and Reproductive Medicine, vol. 5, no. 1, 2020, Web.

Maxwell, Shakira. “Fighting a Losing Battle? Defending Women’s Reproductive Rights in Twenty-First Century Jamaica.” Social and Economic Studies, vol. 61, no. 3, 2012, pp. 95–115, Web.

“More Respondents Opposed to Changing Abortion Law.” Jamaica Observer, 2020, Web.

“Offences Against the Person Act.” Jamaica Ministry of Justice, 2014, Web.

“Offences Against the Person Act 1861.” Legislation.gov.uk, Web.

“Research Dossier: HIV Prevention for Girls and Young Women Jamaica.” International Planned Parenthood Federation, Web.

Terrelonge, Alando. “Abolishing Our Antiquated Abortion Law.” Jamaica Observer, 2013, Web.

Footnotes

Elam.
Maxwell 99.
Maxwell 98.
Macnaghten.
Dutch.
Dutch.
“Research Dossier: HIV Prevention for Girls and Young Women Jamaica”.
Matthews et al. 1.
Maxwell 100.
“Abortion: By Any Means Necessary”.
Terrelonge.
“More Respondents Opposed to Changing Abortion Law”.
Terrelonge.

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