LEGAL EAGLE: Digital penetration and the law

September 19, 2016

We are now in the digital age and the law is not left behind in recognising this reality. Digital penetration, as a part of sexual activity, is proscribed by law in certain specified circumstances.

Digital penetration means the use of fingers to penetrate the vagina or the anus. So this is clearly not referring to penile penetration of those body parts.

In Jamaica, digital penetration is described under Section 4 of the Sexual Offences Act, 2009 (the 'Act'). The Act provides that a person ('the offender') commits the offence of grievous sexual assault upon another ('the victim') where, in the circumstances specified in Section 3 of the Act, the offender penetrates or causes another person to penetrate the vagina or anus of the victim with a body part other than the penis of the offender.

Pursuant to Section 3 of the Act, digital penetration should not be done without the consent of the victim, and in circumstances where the offender knows that the victim does not consent or was reckless, in that the offender does not care as to whether or not the victim consents. A victim under the age of 16 cannot consent in law.

It is important to note that consent will not exist in circumstances where there is evidence of physical assault, threats, fear of physical assault to the victim or to a third party or when the 'consent' is obtained by false and fraudulent representations as to the nature of the act or identity of the offender.

The offender who commits the offence of grievous sexual assault, which involves digital penetration, is liable on conviction in a Parish Court to imprisonment for a term of up to three years. If the conviction is in the Circuit Court, the offender would be liable to be sentenced to life imprisonment or such other term as the court considers appropriate but not less than 15 years.

While a good side to digital penetration may be the reduced risk of sexually transmitted diseases, some medical professionals are of the opinion that it could cause mild trauma, which might be an important piece of evidence if there was no consent to the digital penetration of the person or victim if that person is under the age of 16.

In sum, if digital penetration is not to offend the law, a person seeking to engage in such activity must be careful to ensure that the person who is the object of his or her attention is over the age of consent; that the person, in fact, consents to such touching; and that there is no fraudulent or false representations. Failure to take such precautions before digital penetration of the vagina or anus may lead to the offender pushing the button to the prison door for a long stretch. A word to the wise is sufficient.

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