All Woman

Can an indecent assault conviction be expunged?

Margarette MACAULAY

Monday, April 15, 2019

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Dear Mrs Macaulay,

Can an indecent assault conviction be expunged?

The short and direct answer to you question is no. The applicable Act itself — the Criminal Records (Rehabilitation of Offenders) (Amendment) Act 2014, in the amendment of the principal 1988 Act, addresses this in Section 3. This current Section 3 states that the provisions for being designated a rehabilitated person who can apply for a conviction to be expunged, “shall not apply to any offence specified in the Third Schedule” of the Act.

The Third Schedule lists the laws and their respective sections that are excluded from the operation of the Act, which is the current law, and in Section 1 it is made clear that the amended Act should be read and interpreted as one with the principal Act, that is to say with the 1988 Act which did not have a Third Schedule.

The Third Schedule lists several sections of the Sexual Offences Act that are excluded from the operation of the Act. Indecent assault, the offence dealt with in section 13 of the Sexual Offences Act, is one of these sections. Therefore, a person convicted for such an offence cannot successfully apply for his or her conviction to be expunged. It is also provided that it shall not be an acceptable defence to this offence, even if proved, when it is committed against a person under 16 years of age, that the person consented to the act. The maximum penalty in the Resident Magistrate's courts is three years, and in the Circuit Court, 15 years.

The Act also provides for all scheduled offences to be reported and registered in the Sex Offenders' Register at the respective Sex Registry, which is under the day-to-day management of the Commissioner of Corrections. Those convicted of a specified sex offence who are required by the Act to report in person to the Sex Registry, and they fail to do so, commit an offence and if convicted for it, the maximum penalty provided is a fine of $1 million or a maximum term of imprisonment of 12 months, or to both a fine and imprisonment. Such persons cannot leave the island before making their report and they must report any change of their addresses.

These offences are serious offences as is clearly obvious and the convictions remain a part of the person's record for life.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.


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