Case for close-in-age exception in child diversion act review

The Fi We Children Foundation (FWCF) last week made oral submissions before the Joint Select Committee of Parliament reviewing the Child Diversion Act, advancing key recommendations to strengthen Jamaica’s child justice framework and better safeguard the rights of adolescents.

The youth organisation was represented by Antonio Davis, Nickasha Dockery, Jordaina Denton, and Darrell Scott, with research support provided by Giselle Bradshaw and Keren Dawson. The submission focused on addressing legislative gaps that may inadvertently criminalise children and limit access to rehabilitative justice.

A central pillar of FWCF’s presentation was the call for the introduction of a statutory “close-in-age” exemption. According to Executive Founder Africka Stephens, the absence of such a provision risks drawing adolescents into the criminal justice system for consensual relationships with their peers.

“When the law fails to include a close-in-age exception, it can unintentionally criminalise children, often disproportionately young boys, for consensual relationships with their peers. Our legal framework must guard against coercion, exploitation, and significant age gaps, while ensuring that adolescents are not unfairly drawn into the criminal justice system for developmentally typical behaviour,” Stephens stated.

Under Jamaica’s current legal framework, consensual sexual activity between adolescents of similar age may be treated as a criminal offence, regardless of mutual consent or developmental proximity. This can result in arrest, formal charges, court proceedings, and diversion referrals for conduct that does not involve coercion, abuse, or exploitation.

FWCF cited data from Jamaicans for Justice (JFJ), which indicates that between March 2020 and January 2024, 62 per cent of completed Child Diversion Programme cases were for sexual offences. Of the 452 sexual offence cases recorded, 308 involved sexual intercourse with a person under 16, typically between peers close in age. The organisation argued that this data highlights both the prevalence of such cases and the effectiveness of diversion, while underscoring the need to reduce unnecessary system involvement.

To address this issue, FWCF recommended a tiered defence approach applicable where the relationship is consensual, neither party holds a position of authority, there is no evidence of coercion or exploitation, and the age difference falls within a tiered range.

The organisation also raised concerns regarding the interpretation of “acceptance of responsibility” within the Act. In practice, courts have sometimes treated this requirement as equivalent to a formal admission of guilt, potentially discouraging children from accessing diversion.

SEEKING CLARITY

FWCF is urging Parliament to clarify the legislative language to ensure that acceptance of responsibility is not construed as a guilty plea. Further, the organisation recommended provisions allowing children who dispute allegations to still access diversion services without being compelled to accept responsibility. Such measures would better protect children’s rights to dignity, fairness, and due process.

Another key recommendation relates to the definition of a “child offender” under the Act. The current framework does not adequately address situations where individuals “age out” of the system before their matters are resolved. Drawing on comparative legislation in South Africa, the organisation proposed extending eligibility to include persons up to 21 years old in certain circumstances, ensuring continuity and fairness.

The vulnerabilities faced by children who are wards of the State were also highlighted. These young people are often exposed to trauma, family separation, and unstable living conditions. Without targeted safeguards, minor offences committed by such children may lead to deeper involvement in the criminal justice system rather than appropriate rehabilitative support.

Given that the State exercises parental responsibility through the Child Protection and Family Services Agency (CPFSA), legislative reform must prioritise diversion and coordinated support services for these children, consistent with international child justice standards and the “best interests of the child” principle.

FWCF concluded by reaffirming its commitment to advancing child-centred justice reforms in Jamaica.