FI We Children Foundation has reiterated its call for a close-in-age exemption to be considered in the review of Jamaica’s Child Diversion Act.

According to the children advocacy group, teenagers of similar ages should not face criminalisation for engaging in consensual sexual activity.

The foundation says the law should recognise the reality that some teenagers become sexually active before the age of 16 and provide safeguards to prevent young people in relationships with peers from being treated as criminals.

Darrell Scott, a member of the foundation’s Youth Policy Committee, told a sitting of the Jamaica Observer Press Club last Thursday the proposal was among the main recommendations in the organisation’s submission to Parliament as it reviews the Child Diversion Act.

He questioned whether teenagers who engage in consensual sexual activity with others close to their age should face criminal consequences, particularly when the law does not provide a specific close-in-age exemption.

“Because we understand the age of debut in Jamaica for boys is 13 and 12 for girls so whether or not it’s legal on the books or we think that children should be having sex, the reality is that children are having sex. So the question we are asking is, should we criminalise two consenting teenagers who are having sex?” Scott said.

The proposed exemption is intended to distinguish between sexual activity involving teenagers of similar ages and cases involving a significant age difference, coercion, or exploitation.

Jordaina Denton, another member of the foundation’s Youth Policy Committee and a law student, said the foundation was not encouraging children to become sexually active. Rather, she said, it wanted the law to account for situations that already occur and protect young people from what it considers disproportionate punishment.

“So it’s not like we are saying that we’re supporting the idea of children generally having sex but we are recognising that they are [having sex] and in light of that there needs to be some legal safeguard for them because what is happening is that you have like two 14 year olds or two 15 year olds who are having sex and what’s happening is that this is disproportionately affecting the young males and so because of that we’re saying that we need to have some type of legal safeguard to protect them in recognition of that,” Denton said.

Attorney-at-law Antonio Davis, also a member of the committee, said the foundation was not proposing that teenagers be encouraged to have sex, but that the law should avoid imposing criminal consequences that do not take account of their ages and circumstances.

He said the foundation’s proposal was based on a tiered approach, recognising that not every cases of children under the age of consent engaging in sexual activities should automatically be treated in the same way.

“What we’re proposing is not anything new; it exists in Trinidad and Tobago now, it exists in the United States of America, and so it’s really a tiered approach because you know at that young age a 12-year-old is different from a 16-year-old. So we’re not saying a 16-year-old who sleeps with a 12-year-old should be exempted; it’s a tiered approach that we submitted so the exemption would be between 15 and 16, 14 to 16, 12 to 13, to keep it really close in age,” Davis said.

The foundation’s proposal comes as Parliament reviews the Child Diversion Act, 2018, which provides an alternative to formal criminal proceedings for children who come into conflict with the law.

The Act allows eligible children to be referred to diversion programmes, which can include counselling, mentoring, education and community-based interventions. The aim is to address their behaviour and support their rehabilitation rather than rely solely on prosecution and punishment.