Peter Espeut | Justice Patrick Brooks’ las’-lick

On July 15, 2024 Jamaica’s Court of Appeal ruled that Kensington Primary School in St Catherine had breached the constitutional rights of a female student who was denied a place in the school in 2018 after declining to trim her dreadlocks.

The then five-year-old-child (who was referred to as ZV because she is a minor), was denied enrolment at Kensington Primary after the principal advised her parents that the school had a policy against the wearing of dreadlocks. The school’s policy also banned the wearing of braids and beads.

Outgoing President of the Court of Appeal, Justice Patrick Brooks, in handing down the decision, said, “It is declared that the policy of the board of management of Kensington Primary on the wearing of dreadlocks hairstyle has breached the following rights as they related to ZV rights.”

The judge noted that the child’s right to freedom of expression and the right to equitable treatment by a public authority in the exercise of any function were violated.

Justice Brooks said those breaches were not demonstrably justified in a free and democratic society.

Attorney-at-law Michael Hylton, KC, who led the legal team on behalf of the child’s family, remarked at the time that the ruling was “very groundbreaking in that regard (a) for hairstyle generally; (b) for children, because one of the arguments by the government is that a small child is not expressing anything, effectively has no right of feeling expression which the court has said ‘yes they do’; you can express your feelings, your lifestyle in ways that you’re not hurting anyone else, but you can do it with your hair, in the way you style your hair, and dreadlocks in particular” (transcribed by the author from the audio on the NNN website posted by Ricardo Brooks on July 15, 2024).

THROW OUT OF THE WINDOW

I am no lawyer, but it seems to me that this decision by Justice Patrick Brooks (who retired a few days after delivering the ruling – that is why I say that it is his “las’-lick”) throws all school grooming policies through the window. According to him, a five-year-old child has a constitutional right to self-expression, such that he or she can wear any hairstyle he or she wishes; this must also mean that he or she can comb it or not, braid it, add beads or extensions, and – for that matter – can wear any headgear of choice, as long as they are expressing their feelings. In fact, it seems to me that the ruling also throws out the window the possibility of any school uniform violation, for it declares that a five-year-old can wear any article of clothing to school – or not – as long as he or she is expressing their innermost feelings, and there is nothing the school board or the Ministry of Education can do about it. Judge Brooks has declared it as their constitutional right!

Fast forward now to Monday last – January 13, 2025 – the opening of the Hilary term in the Home Circuit Court. On the list to be tried are 1,034 cases, of which 363 are sexual offences: 164 for rape, 156 for the offence of having sexual intercourse with a person under 16 years old (statutory rape), 15 cases of buggery, and nine cases of sexual touching.

I want to focus on the offence of statutory rape, the high number of which many have described as “alarming”. It is called “rape” because the law states that up until the age of 16 a girl is incapable of giving consent to sexual intercourse, even if she loves the guy and desires to express her feelings for him in lovemaking.

What would Justice Patrick Brooks say about that? Should there be an age of consent at all? If a five-year-old has a constitutional right to express her feelings by wearing any hairstyle she wishes, why can’t she express herself sexually by consenting to be penetrated?

DECRIMINALISATION

The response of the large number of cases of sex with a minor has prompted certain persons to call for decriminalisation of sexual intercourse between children. Children’s Advocate Diahann Gordon Harrison believes it is time to amend the Sexual Offences Act to include a “close-in-age exception”.

“What has been a very interesting feature for me is that we continue to criminalise two 15-year-olds, who claim that they are in love, and I think that we are missing the ball,” Mrs Gordon Harrison is quoted in last Tuesday’s Gleaner.

A “close-in-age exception”, she explained, would still red-flag the problem of children engaging in sexual activities, but would instead prescribe a public health response with “intervention and guidance”.

“Really, just some kind of redirecting in terms of responsible sexual behaviour and the choices that they are making. When we just have a knee-jerk reaction to place them before the court, it does not deal with the root issues,” Gordon Harrison told The Gleaner.

Indeed!

Talk of “responsible sexual behaviour” suggests that there is some external standard which must moderate self-expression in five-year-olds; indeed of persons of any age.

What does Justice Brooks have to say about that?

Clearly children are able to express their feelings at any age; we don’t need the Court of Appeal to tell us that. Tiny tots throw tantrums as they express their feelings of deprivation and frustration; so do adults. These are aberrations which we seek to correct with counselling intervention and therapy. Does anyone have a constitutional right to throw tantrums without sanction or disapprobation because they are expressing their feelings?

Education – among other things – is about growing in maturity, about learning to control self-expression – including hair-styles and grooming choices. Children learn important life lessons when they conform to grooming policies and school uniforms. When they enter the world of work – often with other uniforms and grooming policies – they will find themselves well prepared. I am not sure that Justice Brooks made the right judgment.

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com