Children in danger

Children in danger

Advocacy group says kids being victimised because of failure to address buggery law

Senior staff reporter

Saturday, July 25, 2020

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CO-FOUNDER of the advocacy group WMW Jamaica Hilary Nicholson says children continue to be endangered and victimised without sufficient redress for their pain because parliamentarians are yet to amend legislation to address forced anal sex.

A 2017 parliamentary committee, which reviewed the Sexual Offences Act and the related legislation, in the end made no recommendations to amend the statute relating to forced anal sex. This after it was posited that forced anal penetration should be made a criminal offence similar to vaginal penetration with a commensurate penalty. It was, however, argued that any amendment to that effect could be construed as an implied repeal of the offence of buggery under the Offences Against the Person Act. On that basis, it was felt that the committee did not have the power to effect that amendment and the matter should be considered by Parliament instead.

Justice Minister Delroy Chuck subsequently indicated to the House of Representatives that the “Government has given its commitment to invoking a referendum on the matter“. He said a similar approach was also being taken in relation to abortion.

The committee held a total of 19 meetings, with the last one held on December 6, 2018.

The House of Representatives in November of last year approved the report of the committee on its review of the Sexual Offences Act, the Offences Against the Person Act, the Domestic Violence Act, and the Child Care and Protection Act. That report is now being debated by the Senate, but there have been no pronouncements on the promised referendum.

Currently rape is defined as non-consensual penetration of a vagina by a penis. Jamaica's Offences Against the Person Act, Section 76, makes buggery punishable across the board, with a penalty of imprisonment for up to 10 years, with hard labour. But vaginal rape has a mandatory minimum sentence of 15 years and may even attract a penalty of life imprisonment, depending on the circumstances.

Speaking with the Jamaica Observer this week, Nicholson conceded that some progress has been made on the legislative end as more offences are addressed within the sexual offences legislation that anomaly must somehow be remedied.

“It is more gender-balanced, it addresses offences that affect both genders, and it reviewed punishments, but on the issue of buggery we have made very little progress because the society is not ready to even address the issue of (forced) anal sex,” she pointed out. This, she said, has unwittingly created another danger, pointing out that the sentence in no way matches the devastation caused by the act of forced anal sex.

“We have not been able to make any headway on that, and what it also means is that children who are more often extremely vulnerable to forced sex of that kind, the punishment is inadequate because it hasn't been adequately reviewed.

“So, whereas, based on the circumstances depending on the kind of rape (the punishment is weighted), there is nothing like that for the non-vaginal rape. So parliamentarians' unwillingness to address it is problematic and we have children suffering as a result of it,” she told the Observer.

According to information from the 2018 United Nations Children's Fund (UNICEF) and Caribbean Policy Research Institute (CAPRI) Situation Analysis of Jamaican Children, girls account for 97.3 per cent of the 1,094 child abuse reports received by the Centre for the Investigation of Sexual Offences and Child Abuse (CISOCA 2016). Most cases were reports of sexual intercourse with a person under 16 years, below the age of consent (469); 277 were cases of rape; 63 were grievous sexual assault; sexual touching (35); cruelty to child (21) and buggery (20), which was often the sexual abuse of a boy by an adult male.

Nicholson said another “problematic” issue is the sentence reduction arrangement.

“The fact that sentences can be chopped in half when persons plead guilty is also problematic for us. We have seen cases of severe sexual offences where the person pleads guilty and the sentence is cut in half. We do not have a properly functioning sex offenders registry...but what it means then is you have potential sex offenders' serving a few years and then they are out and about again and that is a great area of concern,” she shared.

The Sentence Reduction Day initiative provides an opportunity for accused persons to enter a guilty plea and benefit from a maximum of up to 50 per cent reduction in their sentence, according to the provisions of the Criminal Justice Administration Amendment Act, 2015. The legislation provides that different levels of reduction should be applied, depending on when the guilty plea is entered. The earlier the guilty plea, the greater the reduction. The maximum reduction is “up to 50 per cent” for offences other than murder, if the plea is made on the first relevant date (the first court date after the defence has adequate disclosure and knows the case against the accused). The minimum reduction is 15 per cent if the plea is made after the trial starts, but before verdict. In cases where the offence is “non-capital murder” and the accused has not been previously convicted of murder, the maximum discount is 33 1/3 per cent, if the plea is made on the first relevant date. The minimum discount is also 15 per cent for murder cases, where the plea is entered after the trial starts, but before verdict. For murder the sentence cannot, even with discount, be below 15 years.

However, no percentage reduction is automatic. A sentence is always dependent on a number of factors including the time the plea is entered, the offence to which the plea is offered and accepted (which may be a lesser offence than initially charged), the unlawful conduct, the harm intended and actually caused, and all other relevant aggravating and mitigating circumstances.

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