Will I be prosecuted for not reporting incest?

Dear Mrs Macaulay,

About five years ago my aunt in law told me that her 31-year-old son had been sexually assaulting his daughter. The child was about 13 at the time,

and when the news came out, she was sent to live with other family members in the country. She is now almost an adult and she hasn’t seen her father

since she left. She has had many problems in her young life and is now pregnant for a careless boy in the district. The thing that weighs on my

mind however, is that none of us reported the father and he is continuing his life as if nothing happened. He also has another young daughter who we

fear will end up the same way. Are there any provisions in the law that would allow me to report this anonymously, even though so many years has

passed? And will I be prosecuted for not reporting this before now?

Thank you for your letter which illustrates the way families too often cover up incest within their ranks. Even the act of removing the child from the abuser’s presence and control, in all probability, occurred some appreciable time after the violation of the child was first suspected or actually discovered. The fact that you say the child has had problems and her present condition tells me that the cover up was so complete that no professional therapeutic treatment was sought for her. The poor child’s welfare was superceded by the family’s decision to hide her father’s disgusting secret and retain what they perceived as their family’s good name.

All of you who knew of the incest committed by this child’s father and in effect did everything to protect him and the family from a public “scandal” and did nothing beyond the child’s removal (which of itself would not have been in her best interest(s), are responsible for the many problems in her young life and her pregnancy. You all failed to provide the kind of healing required for the sexual violations by her father and the emotional, physical and psychiatric harm thereby caused to her.

The child, being removed from her home instead of the person who had been attacking her, would probably have made her believe that she was the one at fault and that she had acted wrongly and so had to be sent away because she had been a bad girl. I am therefore not surprised that she has had problems and about her present condition, because the family completed the destruction of her sense of self-worth.

You say that there is a younger sister in the same home where the same father is still comfortably residing. How can you be certain that he has not yet started violating this child? Do you know all or any of the signs/conduct, which would point to a child experiencing sexual trauma?

Do you know what to look for in her inter-relationship with her father, which would point to his having violated her? This younger child cannot in all conscience be left like a sacrificial lamb for this man to also devour and destroy sexually and psychologically. For her older sister, family members must get off their duffs and arrange for her to commence treatment with a properly qualified therapist. You all must not continue to fail her.

You ask if there are legal provisions which would allow you to report the incest anonymously even though many years have passed. The provisions in the Child Care and Protection Act 2004, which mandate that any information of abuse, even if only suspected, must be reported to the Children’s Registry, also provide that the reports must be kept secret and confidential. This means that not even the fact that a report was made or any information contained in it can be disclosed.

Any person who discloses any information contained in a report or even that a report exists, commits an offence and will be liable, if convicted to pay a maximum fine of $500,000 or to six months imprisonment or to both fine and imprisonment. The “any person” referred to in the provisions refers to the officers in the government agency to which the report is made, and also to which it is referred for further investigation or action. The person who made the report or any other person who knows of the report being made, are also covered by this provision and must not make any disclosures about it or anything contained in it.

If this does not make you feel sufficiently motivated to make the report, which I sincerely trust that it will, I am sure that for a child’s safety, the reception of a report, which is clear and contains all the necessary facts, names and addresses to enable the investigation to be carried out, is better than no report at all and will be accepted by the CDA or other agency. I cannot, however, be certain of this fact but I know that I would investigate it.

The offence for failure to make a report when any person who knows or has information which causes a person to suspect that a child is being sexually abused (sexually ill-treated) became law on the 26th March 2004. You ask, can you be prosecuted for not reporting the incestuous offences committed by your cousin-in-law before now? Yes you can! But the more pertinent question is, will such a prosecution succeed now?

The answer is no, it cannot succeed because the Children’s Registry to which the reports must be made is not yet in operation. Presently reports are made to and received by the CDA, the family courts, the Children’s Advocate, a children’s officer, and of course, the police. The words in the Act are that “any person who has information which causes that person to suspect that a child – (a) has been, is being or is likely to be … sexually ill-treated, or (b) … shall make a report to the registry”.

I really urge you to not only report the incest which has already been committed against the child who is now pregnant, but to also report that the younger one now in the home “is likely to be sexually ill-treated” by her father (bearing in mind what happened to her older sister).

Please, please think first and foremost about these children and not about hiding your identity (which must be kept confidential anyway but perhaps you can arrange a nom de plume for the purposes of the report). It is in your power to save the younger and help the older to receive the kind of therapy she should have had long ago.

Have courage

Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025. We regret we cannot supply personal answers.