Are suspended sentences appropriate for carnal abuse?

I have received many phone calls and have engaged in many discussions both public and private about the suspended sentence being enjoyed by the very adult male of the media for his carnal abuses of a 13-year-old girl over a period of 2 or 3 years.

It was also reported that in the course of the period of his violations of the child, he threatened her life if she ever reported his abuses. In the course of these calls and discussions, many requests were made of me to write a column about it, I consequently now do so.

Let me start by saying that I was rather startled to learn the identity of the judge who pronounced that her sentence of the convict would be suspended for a period of years, (the number now escapes me), because I have always found her to be caring, sensible and appropriately judicial in her conduct and pronouncements throughout matters conducted before her. I must say though that her sentence does not make sense to me.

We do not know what was contained in the indictment. Was there only one count in the indictment, or were there multiple counts? You see, each sexual violation/each sexual act of carnal abuse is an offence.

So, if that man had committed the act of carnal abuse 20 times, for example, there should be 20 counts charged because each is a separate offence. The number of counts charged in the indictment will, of course, depend on the cogency of evidence which exists to prove each and every separate act. This evidence would include the date, time and place the sexual violation by the perpetrator is alleged to have occurred. These must form a part of the wording of the counts charging the offence in the indictment.

From the media reports of the matter, on first blush, as the report related to violations over a number of years, it would seem that the indictment would have included several counts. However, this is merely a conclusion arrived at because of the length of time alleged during which the adult male violated the child. If only one charge of carnal abuse was laid, I conclude that the DPP did not have enough evidence to lay more than one.

I hope that, and urge the police investigators of these offences of the sexual violations of children, which proceed with impunity, to take particular care to collect clear and sufficient evidence of each and every incident of violation. It is only in this way, that state prosecutors can have the material to lay charges for such violations. Then they can, in fact, lay true bills of indictment against these accused persons. The investigation of the offence(s) is therefore vital.

Let me take a set of circumstances to make the situation clear

Example: A 30-year-old male is charged with carnal abuse of an 11-year-old girl over a period of three months. The investigation supported two violations each week (each time the child was alone with him) for the entire period of three months. The days and times were pinpointed and the indictment therefore charged the accused with 24 acts of carnal abuse. For each of these, the Act provides a maximum penalty on a conviction of life imprisonment, for a child under 12 years of age.

The preliminary enquiry is conducted and the matter is committed to circuit court for trial. There, the accused pleads guilty, the plea is accepted, and a social enquiry report is requested and prepared for the judge’s consideration in determining what sentence to impose on the accused.

The report shows that the now convicted man had no previous convictions but character evidence is heard from a number of persons who describe him in high and glowing terms and classify him as a person of good character (surely, this would lead one to question the “characters” of the persons so classifying such a person).

Anyway, the judge in deciding what sentence to impose must take into account the report and character evidence, as well as the seriousness of the offence, the number of times it was committed, the attitude of the convicted man, if he has shown remorse, or if he has made restitution, the likelihood of his committing the offence again, whether the conduct of the convict in committing the offence(s) had been one of impunity (like for instance the fact of that a threat was made against the life of the victim or anyone closely connected with the victim).

All of these things must be weighed and balanced in the consideration of what would be an appropriate and just sentence and that the sentence must punish for the crime committed and be a deterrent.

The judge for this example, could give several life sentences, to run concurrently, or consecutively, and, if the former, it could include the stricture that parole should not be considered before a specific term, for example if 15, 25 or 30 or more years have been served.

If the child was over 12 and below 16 years, the maximum penalty for carnal abuse of such a child is seven years. It is a misdemeanour. Each separate incident of violation is like the below 12 years, a separate and distinct offence. So if an accused has been charged with committing 24 acts of carnal abuse of a child over 12 but under 16 years of age, on conviction, whether after a trial or following the acceptance of a guilty plea, he could be sentenced to 24 sets of seven years or five or three years imprisonment, either to be served consecutively or concurrently.

In cases of a large number of offences, one would hope and expect that the sentence would not be directed to be served concurrently. If the man has no previous convictions, he would be out of prison in about five years if the sentence was seven years x 24 to be served concurrently as long as he is of good behaviour during the term.

However, one would hope and expect that an adult male who had been convicted of carnal abuse of a child of 13 years, and who had threatened the child’s life to ensure her silence, ought to have had the book thrown at him rather than be given a slap on his wrist. He is in effect now free to endanger other girl children and be an advertisement to other males with like propensities that they can commit the offence of carnal abuse with impunity because the law has no teeth.

Or, it is saying to the victims and their families, don’t look to the law for proper redress after all, your sexual violation is not a serious offence? The fact that the mother and child herself (as reported) asked the judge not to incarcerate the convict should not have borne any weight in the matter.

On the contrary, that the mother should have been reminded of her obligation of priority to ensure that her actions at all times, vis-à-vis her child, must be in that child’s best interests and be protective of her, not of her adult abuser’s interests. She should have been sent for counselling and therapy should be provided for the child. I also question, how someone who has engaged in such criminal conduct can ever be described as a person of good character. In addition, the threat made against the child’s life should have exacerbated his culpability and ensured his incarceration.

We cannot expect persons who are active paedophiles and those who have the propensity to sexually abuse children (from 0 to 16 years – which is currently the age of consent) to take their acts seriously and recognise themselves as abusers if we, who should know better, do not by our acts and utterances demonstrate our disgust and absolute abhorrence. We must make it clear that such acts will not be tolerated and persons engaging in them would be effectively punished.

The misdemeanour of carnal abuse and penalty attaching thereto, of girl children between the ages of 12 to 16 years of age, will and must be made a felony under the new act and bear the penalty of life imprisonment as other rapes do.

Let us protect our children as if we really mean to do so.

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.