Editorial | Dust off sex laws report

It is not clear how often a boy and girl below the age of 16 are brought before the courts for engaging in “consensual” sex with each other.

That data, if collated, isn’t readily available, not even, it appears, to the children’s advocate, Diahann Gordon Harrison, who has not seen recent statistics on the matter.

However, this newspaper supports Ms Gordon Harrison’s call for the Jamaican legislature to proceed with an amendment to the Sexual Offences Act to include a “close-in-age” exception to its provision against having sex with someone under 16, which is Jamaica’s age of consent.

Such a provision was recommended by a parliamentary committee six years ago, and the justice minister, Delroy Chuck, says the proposal “is now being acted on”. If that is indeed the case, Mr Chuck should perhaps go further by facilitating a full review, for action, of the December, 2018 report, especially of matters dealing with sexual offences.

Of significant concerns, as The Gleaner has expressed in the past, that forced, non-consensual penetration with the penis of the anus of a female or male, is not, under the existing laws, treated as rape. It is buggery. If an object or body part other than the penis is used, the offence is a grievous sexual assault.

ANACHRONISTIC PROVISION

It is long past time, this newspaper feels, that the anachronistic provision of Section 76 of Offences Against the Person Act (OAPA), which, ipso facto, makes anal sex, even between consenting adults, illegal, punishable by imprisonment of up to 10 years at hard labour.

The State has no place peeping into the bedrooms of consenting adults to determine their private sexual proclivities, if those tendencies don’t infringe on the rights and freedoms of others or pose a threat to democracy or national security.

Indeed, legislatures and courts in the Caribbean are increasingly arriving at this position, concluding that the buggery laws are anachronistic holdovers from a colonial past and are at odds with modern concepts to human rights.

Jamaica should therefore open a mature debate on the subject, towards ensuring that all citizens, regardless of sexual orientation, are capable of legally engaging in all of their fundamental rights.

With respect to the question of the “close-in-age” concept with respect to having sex with some who hasn’t reached 16, the matter gained attention because of the 363 sexual offences cases that are on the roster of the Hilary term of the Home Circuit Court, which opened in Kingston this week. These represent 35 per cent of the cases down for trial.

Notably, 156, or 43 per cent of the sexual offences matters involve having sex with someone under 16. What is not clear is the age ranges of the people charged with the offences.

However, it is not unknown for a teen, below 16, to be charged for having sex with someone of the same or similar age, even if the encounter was consensual. And since sexual intercourse is defined as “the penetration of the vagina of one person by the penis of another person”, in these circumstances, it is usually the boy who is charged.

Indeed, in an August, 2018 letter to this newspaper lawyer Bianca Samuels noted a case of a 13-year-old boy who was then before the court for having sex with someone under 16 – a girl one year his senior.

The girl had given a statement, Ms Samuels said, “that this youngster is her boyfriend and that they had consensual sex”.

MERELY THE ‘VICTIM’

She added: “While the minor boy has been charged and is currently being prosecuted, the minor girl has not been charged; she is merely the ‘victim’.

“This is not a unique set of facts. The reality is that minors are engaging more and more in sexual activity with other minors, and at a much earlier age. Nevertheless, even where the girl does not, in any way, feel victimised, young boys are increasingly facing criminal charges to the exclusion of females, where both parties to the sexual act are under the age of 16.”

Ms Samuels argued at the time that this approach raised questions of equality under the law, as guaranteed by the constitution. In that case, with the legislation not creating a gender-specific offence, boys were being treated differently from girls.

Little has been made of that concern since then. It should be addressed.

Ms Gordon Harrison, the children’s advocate, however, said this week that “we continue to criminalise two 15-year-olds, who claim that they are in love, and I think we are missing the ball”.

It is in that context that she highlighted the “close-in-age” idea (which is used in many jurisdictions) as well as “re-directing (youngsters) in terms of responsible sexual behaviour”.

The parliamentary committee had recommended a four year “close-in-age” exception/gap with respect to leniency for having sex with someone below the age of consent.

The aim, the committee said, was “to prevent children within a certain age band from being criminalised where they willingly engaged in sexual activity with each other”.

Mr Chuck should get this process, as well as a broader review of the committee’s report, going now.