CHILDREN’S Advocate Mary Clarke has urged the committee considering the Offences Against the Person Act to ensure that the wording in the provision enable ‘more convictions in court’.

“We have some statistics which are not very encouraging with respect to rape and carnal abuse where you can’t convict without evidence…,” Clarke told yesterday’s sitting of the committee.

The children’s advocate said her appeal was stirred by an unconfirmed but worrying report that in one parish there has been no conviction for rape and carnal abuse for the past year.

“I have not been able to verify this, but the situation is getting to be of concern to my office. We are just not getting enough convictions for rape and carnal abuse so we just have to put all the systems in place to ensure that persons who are guilty do not walk free because of any weaknesses in any part of the system,” Clarke told the committee.

Committee chair and attorney general, Senator A J Nicholson, concurred that Clarke was ‘right’, but refrained from commenting further.

Clarke’s advice came during the committee’s deliberation on whether it should change the term ‘sexual activity’ in the bill to ‘sexual behaviour’ when considering the admission of the evidence.

Meanwhile, the committee failed to reach a position on the proposed new section, 44B, which deals with the restriction of evidence of the sexual history of the complainant. With the provision in any proceeding in respect of rape, no evidence can be adduced and no questions can be asked involving the complainant’s sexual history with persons other than the accused.

Yesterday, director of legal reform in the Ministry of National Security Dr Aileen Boxhill, in explaining the rationale behind that proposal, said under the existing law the situation was a free for all.

“Evidence relating to the sexual history of the complainant may be adduced, what this bill is seeking to do is put in place some amount of restriction,” Dr Boxhill said.

In the meantime, the committee threw out a recommendation from the Bureau of Women’s Affairs that all questions relating to previous sexual history be prohibited.

Commenting on the issue, law reform expert and advisor to the committee Shirley Miller said she could not agree with the bureau’s suggestion that all questions regarding previous sexual history be prohibited. She said the bill was based on Canadian model which has ruled such a position unconstitutional on the basis that in certain cases the defence should be allowed to bring evidence with respect to the right for a fair trial.

Senator Nicholson, in noting that while the intention was to protect the complainant, legislators could not overcompensate.

“What we have to understand is, if we are going to curtail the privileges and rights that are given to accused persons, you have to be careful that you are not infringing any of the provisions of the constitution. What is being suggested here is really meant to protect the complainant, now in trying to protect the complainant we can’t over compensate,” he pointed out.

Consequently, the attorney general in noting that the experts would have to revisit the issue, instructed the technical team to find out whether there were circumstances that can be encompassed in the bill in which the previous sexual activities of an accused person may be admissable as well, in response to calls that there should be balance.

He said, however, that “there will never be a balance”.

In the meantime, Miller suggested that any restrictions on questions regarding the sexual history of the complainant should apply to sexual offences generally, instead of rape alone.

She was supported by Boxhill who noted that especially with the decision to keep rape as traditionally defined and classifying other sexual acts now seen as rape as other offences, the limitations would have to be extended.

“By taking out some of the offences that are now dealt with as rape and classifying them as other offences, we would have to extend the limitations as it applies to the sexual offences. We would have to do it once we move away from the definition we have,” she argued.

One major reform to the Act will see the inclusion of provisions to make the offence of rape gender-neutral, meaning it could be committed by a male or female against both male and female. Previous proposals to provide a statutory definition of rape and sexual intercourse which would extend ‘rape’ beyond vaginal penetration by a penis has since been thrown out by the committee. Instead, it was agreed that the traditional understanding of rape would be kept and have other sexual acts recognised under other offences elsewhere in the provision.