Can teacher convicted of sexual offence with pupil have records expunged?

Dear Mrs Macaulay,

I have been reading your responses on expungement which have been very informative. A teacher pleaded guilty to carnal abuse in 2009 and was given three years imprisonment, and three years suspended sentence. The teacher (who was 29 years old at the time) had got his student pregnant who was 15 years old, hence the conviction. Based on my reading of the amended Criminal Records Act (2014), I assume that this individual would not be eligible for expungement. Would the teacher be required to register for the Sexual Offenders' Registry if his records cannot be expunged? Or maybe my assumption is wrong and his record can be expunged.

I also saw where you raised the issue of the rehabilitative period for offences, in addition to serving the period for sentence (suspended or otherwise). I was unable to ascertain the period of rehabilitation for this particular offence.

I note that your subject teacher, who was 29 years old at the time of his conviction for carnal abuse of a 15-year-old student of his, who became pregnant as a result, in 2009 was sentenced to three years imprisonment plus three years suspended sentence. The judge clearly took into account the fact that in all probability, the abuse was over a period of time, which was much worse than a single occasion, which is bad enough, even if the victim was a grown woman, let alone a child of 15 who cannot even consent. In addition, he was 29 years old and not 23 years old, when if it was his first offence and he was not her teacher, he could have proffered the special defence that he thought she was over the age of consent. These would not and clearly did not apply to him, so he was sentenced to serve a term of three years in prison and to a further suspended term of three years.

Your assumption that the teacher would not be eligible to have his conviction for carnal abuse expunged because his sentences, the actual imprisonment and the suspended, would exclude him from being treated as a rehabilitated person both under the substantive Act as together they exceed the periods of sentences provided in the Act. This was if there was no term of imprisonment imposed or if one was imposed, it did not exceed three years, then the rehabilitation period in the substantive Act of 1988, was three years. In the Amendment Act No 12 of 2014 the rehabilitation period for a three-year term is five years. Such periods must be calculated from the end of the term of imprisonment and that such has been served. The 2014 Amendment Act could apply to sentences for a conviction and sentence which occurred before this Act commenced. This is provided in section 17 as the transitional provision in the Act.

However, the teacher also had a suspended sentence of three years, which would run after he completed his prison term, as you did not say that it was ordered to run concurrently with his prison term.

A "suspended sentence" is defined in section 2 of the Criminal Justice (Reform ) Act as a sentence which is ordered not to take effect unless the offender commits another offence within the suspended term.

From my reading and opinion of the provisions and from what you have stated about the teacher's offence, conviction and sentences, he is not eligible to apply successfully for his criminal record to be expunged, this is however based on the scant facts provided in your letter. I therefore, advise him to seek a full legal opinion on the matter as his circumstance may allow him to succeed with an application because his offence was not included in the substantive Act until Act N0 12 of 2014 was passed, when he would be able to supply all the facts related to his case, conviction and sentences, which would enable a duly instructed lawyer to give him a more fulsome advice.

Act No 12 of 2014 does clearly list offences, in its Third Schedule of offences under the Sexual Offences Act, in relation to section 3 of the principal Act, the 'Offences for which convictions may not be expunged" and section 10 of the sexual Offences Act, there listed deals with "Sexual intercourse against children and indecent assault". Section 10(1) specifies that any person who has sexual intercourse with a person under 16 years of age, commits an offence. Then section 10(4) deals with where the person charged with a section 10(1) offence, is a person in authority or has authority over the child, then that person is liable on conviction in a Circuit Court to life imprisonment or some other term which the Court deems appropriate but this should not be under 15 years and the Court may divest the person of his authority. The Act goes further to make specific provisions about when such a person can be granted parole. In other, these offences are treated with greater seriousness that had hitherto been the case.

As to your question about the Sex Offenders Register, as you can see from above, the Act was not in force when the teacher was convicted and sentenced and even if it is concluded that he ought to be in the Register, the part and sections which reflect his offence were put in operation on the June 30, 2011. In addition, he personally would not be the one responsible to send the particulars of his conviction to the registry. The Act provides which judicial officers must do so with respect to the particular Court in which the trial, conviction and sentence occurred.

As you can see, from the above contents, a lot depends on the dates of his conviction commencement and completion of his sentence and I repeat that he must seek a more considered legal opinion which would follow all the relevant facts being given to a lawyer for a more proper and fulsome consultation.

Despite this, I trust that I have been of some assistance.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.

Margarette MACAULAY

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