Business

New sexual behaviour regulations far-reaching

Legal Notes

Andrea Scarlett-Lozer

Wednesday, October 31, 2012    

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THE creation of a Sex Offenders’ Register in Jamaica has been receiving much attention in recent weeks. The Sexual Offences Act, 2009 forms the legal basis for the creation of this Register. However, the changes brought about by this Act in the regulation of inappropriate sexual behavior are more far-reaching than the Register, and represent somewhat of a paradigm shift in comparison to previous regulation, primarily under archaic common law and the old Offences Against the Person Act, 1864.

The Sexual Offences Act emphasises the protection of children under the age of 16 years. Accordingly, several offences are specified for punishment when committed against children under 16 years. The offence of grievous sexual assault covers a broad range of sexual activity and is stated to be sex inflicted by penetration of vagina or anus by the penis, a body part other than the penis (eg. fingers, hands), or by an object manipulated by the offender; use of the mouth on the vagina, anus, vulva or penis; putting the penis into the victim's mouth, among other things. This offence is made out where the victim did not consent or where the offender did not care whether the victim consented, or strictly where the victim is under 16 years old. In addition, there are also offences related to sexual touching or interference with children, sexual grooming of a child (that is, meeting or communicating with a child with the intention of committing a sexual offence), sexual intercourse with a child, indecent assault of a child, and inducing or knowingly allowing a child to be upon ones premises for the purpose of having sexual intercourse. The Act also deals with several offences related to abduction and abduction of children under the age of sixteen (16) years receives special treatment in various parts of the Act. It is also clear from the legislation that offenders may be charged for victimising both male and female persons.

The legislative provisions regarding the offence of sexual grooming of a child have the effect of being able to capture sexual predators who communicate with children via the Internet, telephone or text messages. Operators of commercial properties for short-term accommodation, such as hotels and motels, also have to be careful. If the owner, tenant, manager, or supervisor of the establishment knows that a child is being admitted for the purpose of having sexual intercourse, that person may be guilty of a criminal offence under the Act. It will be interesting to see whether the court's interpretation of this particular provision and its application will cover persons who turn a blind eye and then contend that they did not know the purpose for which a child was upon the premises.

Another interesting aspect of the Sexual Offences Act is the creation of the offence of marital rape. By this reference, one may think that this offence covers rape by a husband in any marriage. But, this is not so. Marital rape may only take place where the couple has separated, or there is a separation agreement, or ongoing divorce proceedings, or there is a restraint order against the husband, or the husband knows that he has a sexually transmitted disease (presumably one that he did not contract from his wife). Note that there is no equivalent offence committed by a wife against her husband in similar circumstances.

In terms of a paradigm shift, the Sexual Offences Act abolishes the old common law principle that a boy under the age of fourteen years is incapable of committing rape or any other offence involving vaginal or anal intercourse. Further, the Act also abolishes the requirement for a judge to warn a jury as to the dangers of convicting a person accused of rape or other sexual offences without corroborating evidence. The common law rules on the requirement for corroborating evidence had for many centuries made it difficult for rape cases to be proved in a court of law and this occurred in a context where it is often argued that sexual offences usually take place where there are no witnesses and where traumatised victims are likely to not report the case promptly.

Under the Act, the penalty for most sexual offences, if the accused is convicted in a Circuit Court ranges from ten to fifteen years’ imprisonment or up to life imprisonment for rape. Conviction in a Resident Magistrate’s Court attracts the much lower penalty of three years or less.

The recent spike in rape of females and the sexual assault of children, as well as, the spate of extrajudicial punishment of alleged sexual offenders has sparked outcries in the society. In my opinion, the text of the Sexual Offences Act seems to be adequate to govern sexual offences. Clearly then, there is a gap between having adequate legislation and having a system that works and inspires confidence among the constituents that offenders will be held accountable according to law.

Andrea Scarlett-Lozer is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Commercial and Intellectual Property Department. Andrea may be contacted via andrea.scarlett@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.

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