MCGREGOR
The test of the morality
of a society is what it does
for its children.
- Dietrich Bonhoeffer
OUR CHILDREN are some of the most vulnerable members of our society. In recognising that they are also our future, we need to consider whether our laws are adequate to protect them. In this context, they need protection from criminal elements as well as those who are charged with the legal responsibility to protect them.
Jamaica ratified the United Nations Convention on the Rights of the Child on May 1, 1991 and thereby committed itself to ensuring the protection of every Jamaican child. There is a long list of attendant duties and responsibilities of the government and adults to children, which includes the right to protection from:
* all forms of maltreatment and abuse;
* work that threatens the child's health, education and development; and
* all forms of exploitation, torture, cruel treatment or punishment.
All forms of sexual offences committed against children may be said to fit into the three protected rights set out above. For example, incest and rape constitute abuse, and child prostitution is a form of exploitation and work that threatens a child's health. Although, we have laws that prohibit these types of activities, the question is whether they are effective.
THE LAW
Under the Incest (Punishment) Act, 1948, a man who has carnal knowledge of a female who, to his knowledge, is his granddaughter, daughter, sister or mother may be imprisoned for up to five years. If his daughter or sister is under 12 years of age, he may be imprisoned for up to 16 years. If a woman, who is 16 years of age or older, permits her grandfather, father, brother or son to have carnal knowledge of her, she may be imprisoned for up to 5 years.
A bill to amend the 1948 Act was published in the Gazette in 1995 and seeks to address some of the obvious deficiencies. Its main objectives are stated to be an attempt to make the act gender neutral, to extend the categories of relationships which may give rise to a charge and to impose a more severe penalty. In particular, it is intended to define incest to mean sexual intercourse between a wider category of persons who are related to each other. Whereas, the existing act only refers to lineal relations, the amendment will include aunts, uncles, nephews, nieces, guardians and "step" relations as potential offenders.
The proposed amendment also removes the distinction between cases in which the offence is committed against persons over the age of 16 years and those under the age of 12 years. The maximum penalty for committing incest will be life imprisonment. Further, the consent of the Director of Public Prosecutions will be required before proceedings can be instituted against an offender.
The crime statistics as they relate to sexual offences committed against children are staggering. In particular, a 2004 UNICEF Report stated that children were the victims of 70 per cent of all reported sexual crimes. Of that number, all the victims were girls. As we all know that boys are also frequently sexually molested or abused, the inescapable conclusion is that the offences committed against boys are not being reported.
We have made some strides in the area of child protection legislations with the enactment of the Child Care and Protection Act, and the recent appointment of the Children's Advocate. However, while the amendments to the legislations remain dormant, as the adults in our society, we need to fulfil our moral obligation to protect our children.
SOMETHING TO PONDER
When a child, who has been the victim of a sex crime, is required to give evidence at court, the judge is required to warn the jury that it is dangerous to convict solely on the basis of that child's evidence. Despite the fact that the jury may convict the alleged offender in the absence of corroborating evidence, it certainly makes it more difficult to secure a conviction. One
wonders how many of these crimes go unpunished.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
