Is prosecution for a decades-old sexual assault possible?

Dear Mrs Macaulay,

I was sexually assaulted (touched on my private area, penetrated with fingers, and kissed) by a family church friend many years ago, when I was 12 and he was in his 30s. I am now 40 years old. He is still alive. I’ve seen a recent case where an old man is being prosecuted for rape. Could I prosecute this man for what he did to me decades ago?

It is always so painful to hear from someone who is relating the horror-filled sexual violation committed against them during their childhood by someone who purported to be “a family church friend”, and who a child within the family would not have dreamt would be a danger to them.  This person caused so much trauma to you at 12 years of age, that even now at 40, it is still causing you such great pain, that you are prepared to now pursue the abuse you suffered then, in our criminal system.

Clearly, your parents did not know or were not able to deal with what happened to you by this so-called friend of theirs who blatantly disrespected them and their friendship by egregiously abusing their young child, and who also demonstrated that he had no belief in and respect for what their church purported to stand for.   You have not really given any details save for the actual act of sexual violation which you assert occurred; for example, where it happened, what time of day, were any persons nearby, did it happen more than once, and whether he threateningly frightened you not to report it to anyone.

You have asked whether you could prosecute this man for his sexual violation of you several decades ago.  The answer is positive.  Yes you can, but you must, of course, be able to report all the facts of what he did to you, where and when, how often, and what you did afterwards. And it would be good for you to yourself understand why you did not act against him before now.    As you know, the prosecutions for sexual crimes are those with victims who suffered injuries, or from whom sperm specimens were obtained, and by comparison, the man accused of the deed, is the only match found.   These are of course not the only successful prosecutions.

You can proceed by going to CISOCA, the Centre for the Investigation of Sexual Offences and Child Abuse, to make your compliant to them and make clear that you wish to prosecute this man for what he did to you.  You can initially contact them by phone or e-mail at cisoca@jcf.gov.jm;  876-926-4079; or WhatsApp: 876-224-5352.  The physical address is 6 Upper Musgrave Avenue, Kingston, where you can go and report it in person.

You can also report it to the Bureau of Gender Affairs or the Children’s Advocate’s office, or at your nearest police station.   You should, however, bear in mind that though each police station  should have at least one or two officers specially trained to deal properly and effectively with persons and children who have suffered sexual violations, such officers may not readily be available on the day you choose to go in.  The officers at CISOCA are purported to be the experienced specialist officers (with human failings nonetheless) but you should perhaps go there to make your report.

I would advise you to take time and try to remember everything that you can about what happened and write them down and take that prepared account with you when you go to make your complaint, and tell them you wish to prosecute the crime as the man is still alive and you wish this to happen before his demise.

I must point this out to you that as you may know, a Sexual Offences Act was passed on the 20th October 2009, which repealed the Incest (Punishment) Act and some provisions of the Offences Against the Persons Act. The offence(s) were committed against you in 1997, as by my calculations you were born in 1985.  Well in 1997, the Sexual Offences Act did not exist, and so the offence(s) committed against you was/were those in the Offences Against the Person Act.  You see, a person cannot be charged and be prosecuted for an offence which did not exist in law (in an Act or in common law) when the crime was committed.  However, though I mention this, indecent sexual assault was in the Offences Against the Person Act and is also in the Sexual Offences Act. The maximum penalty of 10 years in the Sexual Offences Act would therefore not apply to this man, if your prosecution proceeds and he is found guilty, as at the time of the offence, the penalty would have been a maximum of  three years with or without hard labour for indecent assault when committed against any female or girl under 16 but not under 12 years of age, which is the group you were in at the time he committed the offence against you.

The trial judge, if he is found guilty of the offence against you, would find an appropriate term of imprisonment for him to serve which would fit his crime against such a young girl.

For your information, the Child Care and Protection Act 2004 also has provisions imposing duties on any person who has information that a child “has been…sexually ill-treated”. This person shall (must) make a report to the Children’s Registry, and a person who fails to do so commits an offence and upon them being summarily convicted the their failure in a parish court, shall be liable to pay a fine up to $500,000 or to imprisonment for up to six months, or to both a fine and a term of imprisonment.  You see, this provision deals with circumstances when a child’s sexual violation was in the past; the duty to report was by this Act made a present legal obligation and provides the penalty for any person’s failure to make the report when they have information of a child between 12 and 16 years of age who was sexually ill-treated.

You should, apart from prosecuting this man for his crime which is clearly vitally necessary for you to do, also seek counselling from a psychologist who deals with sexual/abuse traumas, because you are clearly still being affected by the trauma caused by that man’s sexual violations which he committed against you all those years ago.

I wish you the very best and that you find the strength to proceed and make your complaint against this man, as I have tried to demonstrate to you the law enables you to proceed now as you seem to want to do.

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.