The Colonial Legacy of the Offenses Against the Person Act in Jamaica

Introduction

Colonial legacy has left significant marks on societies 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 British 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 existing abortion laws on the island under the influence 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 postcolonial influences including systemic racism, inequality, and appropriation. However, recent years has seen more cultures ascertain their identity by dropping the shackles of colonial influences through this postcolonial exploration. Access to abortion is a fundamental human right and affects primarily women who are much disadvantaged in developing postcolonial nations such as Jamaica. Exploration of postcolonial 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. 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.

The Offences Against the Person Act

One element to note is that the wording of the Jamaican OAPA legislation is vague. While it lists actions that are unlawful, it does not state what is considered lawful. Any woman attempting to self-induce abortion or any person/clinician attempting to aid her is to be charged with a 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 unsanitary conditions, while those unable to afford it must rely on dangerous, unofficial providers or homemade concoctions to induce miscarriage.

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. 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. Suddenly, a fetus was more valuable than millions of enslaved Africans who were viewed as subjects of abuse for decades and had absolutely no rights. The legislation lacked moral authority, targeted the poor former slave populations to ensure the availability of supply of cheap labor. The irony that remains is that African women during days of slavery claimed their reproductive freedom through abortions and infanticide to prevent their children from being born into slavery. Evidence suggests that under slavery and in years after emancipation, women would use a variety of techniques to prevent the continuation or realization of a pregnancy. These induced abortions demonstrate that women were active elements of resistance and highlight the desire to have control over their bodies. OAPA essentially sought to delegitimize and continues to deny that right to the descendants of slaves in Jamaica today.

Another aspect to consider is the demographics and policies of the time. In the latter half of the 19th century, Western nations, including Britain were shifting from societies of high birth rates and high death rates to low birth rates but still high death rates. There was a fundamental shift in basic family structure. The declining birth rate was seen as the biggest problem, becoming the basis of the slogan at the time, ‘advance and populate, or perish.’ Female reproduction became a matter of national obsession. However, there was an inherent relationship between sexism and racism, as women, reproducers of the race were either always encouraged (white women) or discouraged (indigenous and minority women) to reproduce. Measures aimed at regulating abortion in white settler colonies were associated with highly gendered and racialized rhetoric in policy which was resonating throughout the British Empire.

After the abolishment of slavery in the early 1800s 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.

Current Status of OAPA and Abortion Rights in ‘White Settler Colonies’

First, it is viable to examine previous colonies that currently maintain a large or majority of white populations. The history behind this is complex for each location but comes down to the fact that local populations were inherently destroyed, Ireland being an exception. These include Australia, Canada, Ireland, or New Zealand. All of these colonies were also heavily affected by OAPA, maintaining criminal restriction on the practice in statute law. However, despite rather liberal social attitudes, both Ireland and New Zealand maintained rather comprehensive bans on abortion (replacing the OAPA with their own national laws in the late 20th century) until recently, passing decriminalization frameworks only in 2018 and 2019 respectively. In Australia, abortion was decriminalized as part of section 3 of the Crimes (Abolition of Offence of Abortion) Act of 2002. While each state and territory have the right to maintain their own abortion laws, all but one has fully legalized and provided accessible abortion. South Australia territory only allows abortion with two doctors signing off that the abortion is necessary to protect the life or health of the woman or the child is certain to be handicapped. In Canada, induced abortion was decriminalized in 1988, with no federal restrictions, but minor restrictions can be placed individual provinces.

The UK controlled a number of colonies on the African continent. As of currently, the only country out of all the colonies, and on the whole continent, to allow abortion without restrictions is South Africa. Zambia, which was also a British colony allows abortions to preserve life, health, mental state, or for socioeconomic reasons. All other countries in the region only allow abortions to save the life of a woman, in some cases to preserve physical health. Similarly to other regions, scholarly literature identifies the abortion laws of African Commonwealth jurisdictions are drawn directly or indirectly from British common law, which at the time of these colonies independence in the 20th century was still based on the Offences Against the Person Act of 1861.

Similar trends can be seen in the nations of the Caribbean Commonwealth, independent English-speaking countries that were once British colonies. Antigua and Barbuda have the strictest practices of all, with abortion only in cases of saving a woman’s life. Bahamas and Grenada allow in cases of preserving physical health. All other nations allow abortions for all of the above as well as to preserve mental health, and in cases of Barbados and St. Vincent and Grenadines, for socioeconomic reasons as well. None of the Commonwealth countries in the region allow for non-restrictive without reason abortions. Scholarly research in the region once again indicates that abortion laws in the Caribbean derive from the legacy of colonial jurisprudence, not just among British colonies, but French, Spanish, and the Netherlands as well. Former British colonies operate against the background of English common law, but not all of it has been changed. The majority of the countries utilize amended versions of the OAPA which limit abortion practices.

In general, Caribbean countries, like Jamaica, have forms of institutionalized tolerance for abortion. While the practice is illegal, governments and medical institutions are aware that it goes on in secrecy, even at official healthcare providers. The population is aware of who conducts abortions but public discussions or information sharing about it are not permitted. The government and law enforcement generally turn a blind eye, but despite calls by physicians and human rights advocates to legalize abortions since the majority of society accepts it, lawmakers avoid placing abortion into law since it would create significant outcry from the Christian church, which has power and influence in the region. Therefore, the status quo throughout the Caribbean is that abortions are performed unofficially, but that creates numerous other issues for physicians ranging from potential loss of license to lack of appropriate tools, medications, and insurance coverage to perform the abortion.

OAPA was so influential that 11 out of 18 former African colonies, 9 out of 11 in the Pacific, and 9 out of 12 in the Caribbean still maintain some form of the law or its derivatives to govern its abortion regulations. As can be seen, some previous colonies have moved towards liberalizing the legislation in the modern-day, while others such as Australia, Canada, and New Zealand have 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.

De Facto Law in Jamaica

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 mother’s 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. 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. Meanwhile, Jamaica continues to maintain the OAPA of 1864 as its official legislation, which although has been amended several times, the section on abortion has been untouched, making it illegal if persecuted fully under the national 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 legalizing abortions in cases of rape, abuse, and incest. Latin America and the Caribbean have 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 were the 8th leading cause of mortality, indicating that many were conducted unsafely and potentially non-clinical settings.

Under de facto law, abortions can be carried out in Jamaica, requiring the written consent of two physicians corroborating that the abortion is necessary to preserve the 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.” 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 JAD. These are performed in small, private clinics where the population and law enforcement know that the procedure is offered de facto. However, such a large sum of money is affordable to few in the 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.”

Modern Social Contexts for Jamaica

In modern-day, Jamaica has long struggled with the debate on abortion. Strong views continue to support the outdated and highly conservative law. The conservative community of a majority Protestant country has been vocal in its opposition to abortion. One of the two primary political parties in Jamaica is the Jamaica Labour Party, which is also the current governing entity. It is a conservative party that strongly upholds family values and morals and closely associates itself with the church for political influence. Despite being a tourism hub since its independence and seemingly an open nation, Jamaica remains a fundamentalist, Bible-oriented society in many ways. After the declaration of the government in 1975 to change the abortion stance, the policy never came into fruition as religious fundamentalists galvanized support and used moral persuasion to block legislation. Jamaica’s strong Christian bias has historically played a critical role in deciding matters of public interest or those with high public scrutiny. The population is highly religious, with a rumored highest number of churches per square mile in the region. Another social issue impacting abortion in Jamaica is the inability of women to negotiate safe sex practices. Approximately 20.4% of women between ages 15 and 19 have been forced into sexual intercourse, and combined with social conservatism and unbalanced relationships, most women, even in consensual relationships are not in a position to insist on the use of contraceptives.

It has become a topic of the 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. However, 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 has led 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 is quiet on the matter due to the strong influence of religious organizations on the island which operates under the guise that Jamaica is a theocracy and block any progressive laws for the modern pluralistic society which does not abide by the religious dogma.

Conclusion and Further Research

The Offences Against the Person Act represents the institutionalized influence of the 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, that 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.

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