When the new Incest (Punishment) Act comes into force, individuals under 16 years of age will be considered capable of committing incest.

Presently, under the Act, persons under 16 are regarded as those who have been violated. But based on a decision taken last Wednesday by the committee considering the Bill, the age ceiling is to be removed.

After hearing arguments from several committee members who contended that since the age of criminal responsibility has already been placed at 12 years, there should be a single age range running throughout legislation addressing the liability of sex offenders, the committee decided to go the route of the Trinidadian Sexual Offences Act.

Under the Trinidadian legislation, with respect to incest, there are different categories of potential punishment which are determined by the age of both the offender and the offended. Provision is also made for where the offence is committed between minors.

Committee chair and attorney-general Senator AJ Nicholson said the route taken by the Trinidadian legislation “seemed to be a way of resolving” the issue. He said what was being suggested was that between the ages of 12 and 14 there would be non-custodial sentencing, but noted that different sentencing options would apply for individuals in the under 18 age bracket.

“What is being suggested is that we follow what Trinidad sought to do. but when it comes to between the ages of 12 and 14 the recommendation is being made that those persons should not be incarcerated; non custodial sentencing,” the attorney-general explained.

He said the suggestions that the committee should try to reconcile the age ranges running throughout the sexual offences regime could not hold true for the incest legislation.

Director of legal reform in the Ministry of National Security, Dr Aileen Boxhill, who was in agreement with the stance taken by the attorney-general, said while there needed to be a review of the various ages being purported in several pieces of legislation for sexual offences, it was not necessary to have a single range.

“I would not say that it can hold true at all because I think in any case you would need to look at the particular circumstances…and be guided,” Dr Boxhill told the committee. “I agree that one needs to review the various ages, but not that it is necessary to have one age range. The decision is that the age be removed but that the age differences be recognised in terms of the sentencing.”

The main areas of change for the Incest Punishment Act had been to create a single, gender-neutral incest offence by persons 16 years and older and broaden the scope of persons who can be found guilty of the offence to include, among others, aunts and uncles, nephews and nieces and persons in loco parentis relationships (persons, not parents, in parental-type relationships with children). It also provides for the re-classification of the offence of incest as a felony, with a maximum penalty of life imprisonment (as is the case for rape).

But in a prior sitting, resident magistrate of the Corporate Area Criminal Court and chair of the Eastern Circuit of Children’s Courts, Paula Blake Powell, had cautioned the committee against setting the new age range in the Act, which would see only persons 16 and over being charged for incest.

Expressing discomfort with the proposed amendment, Blake Powell said persons between ages 12 and 17 were capable of committing incest. She argued that if a new age range was instituted for incest it would create further anomalies in the legal age range for children to be held criminally responsible for their crimes.

Instead, she advised that the committee should seek to come to some sort of consensus as to the age of criminal responsibility which would be applied in all related legislation.

Meanwhile, lawyer and human rights lobbyist Margarette Macaulay insisted that provision be made in the legislation to ensure that the guardianship or authority

the offender has over the child should be divested immediately upon conviction.

According to Macaulay, this was to prevent the offender from having any power to dictate who the child resided with afterwards or to prevent the offender from ordering the child to make visits to the lock-up or having any say over the child’s life whatsoever.

The committee also considered widening the categories of persons who could be convicted for incest to include individuals in ‘positions of trust’ who are not blood relatives.