Gaps in law expose kids to sexual violence
Perhaps one of the most uncomfortable facts for Jamaicans to acknowledge is that there are persons, including parents and guardians, who sexually abuse the children living within their homes.
Preliminary statistics from the Office of the Children's Registry indicate that from 2007 to 2013, the Registry received 13,387 reports of sexual abuse of children. Acts of sexual abuse included rape, buggery, carnal abuse and incest.
These statistics are alarming, especially in light of the fact that acts of sexual violence are generally under-reported. They highlight the need for the joint select committee reviewing the Sexual Offences Act and related acts to promptly address the gaps and inconsistencies in the laws (some discussed herein) which limit the protection of our children from sexual violence.
In acknowledging the various means by which children are sexually abused, the Sexual Offences Act, 2009 created the offences of sexual touching (Section 8), sexual grooming (Section 9) and householder inducing violation of a child (Section 11). While this is a welcome development, these offences will only be recognised as such if the violation is committed by an adult (defined in the act as a person over the age of 18 years) against a person under age 16.
There is no offence where acts constituting any of the aforementioned offences are carried out by persons between the ages of 16 and 18. Consequently, should a 17-year-old girl or boy engage in such acts with a child of eight years old, that eight-year old child is denied protection under the law.
Statutory Rape Defence
Another vexed issue is that troubling defence in Section 10 (3) of the Sexual Offences Act. This section provides that any person under 23 years of age charged with having sexual intercourse with a person under 16 ('statutory rape') has a defence if he is a first-time offender and he had reasonable cause to believe that the child was over 16. This would allow, for example, a 22-year-old man who has sexual intercourse with a nine-year-old girl to rely on this defence provided that the above-mentioned conditions are satisfied.
Of note is the fact that under the previous law (Section 50 of the Offences against the Person Act, 1864), this defence was only available where the girl was above the age of 12 and under the age 16. It is a cause for concern that this defence can now apply where the victim is under 12 years old.
Also of concern is that while the Child Pornography (Prevention) Act, 2009 criminalises the use or involvement of children in the production of child pornography, it does not speak to where a person for the purpose of obtaining sexual gratification intentionally causes a child to watch pornography or to watch a person or an image of a person engaging in sexual activity. At present, there is no law criminalising such acts.
Absurdity in Law
Notwithstanding these gaps and inconsistencies, no person can successfully challenge these laws on the basis that they infringe any of the rights and freedoms guaranteed by the Constitution of Jamaica, 1962. This is because of the savings provision in Section 13(12) (a) of the Constitution.
The effect of this provision is that even if it is established that any of the aforementioned gaps or provisions breaches one or more of a child's constitutional rights, the said law cannot be struck down on that basis because it is protected from challenge.
One of the primary reasons for the introduction of this savings provision in 2011 via the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act was to ensure that Section 76 of the Offences against the Person Act, 1864 ('the buggery law') could not be successfully challenged on the grounds that it contravenes any rights of persons engaging in the act of buggery.
The blanket application of the savings provision to any law 'relating to sexual offences' not only affects persons engaging in the act of buggery. It also affects child victims of sexual violence and it denies them equal protection of the law.
It is, therefore, imperative that the joint select committee reviewing the Sexual Offences Act and related acts uses this golden opportunity to adequately address all gaps and inconsistencies in the laws governing sexual violence so that each child is equally protected and each child victim has equal access to justice.