RIGHTS watchdog Jamaicans for Justice (JFJ) has joined calls for “consensual sex between minors to be decriminalised”, claiming that such cases have clogged Jamaica’s Child Diversion Programme while snapping up resources that could be used for sex education.

Instead, the group, in its latest report titled Civil Society Review of the Diversion and Alternative Measures for Children in Conflict with the Law in Jamaica, says it “strongly suggests” that lawmakers introduce “a statutory defence where no offence occurs if partners are less than two years apart in age [both under 16], with a further defence available for differences up to five years if: the activity is consensual, there is no position of authority or dependency, and the younger party is at least 12 to 14 years old [to balance protection]”.

According to the JFJ in the document which was unveiled on Monday morning during a press briefing, “data show a significant percentage of diverted offences involve girlfriend-boyfriend sex or consensual sexual practices among minors, often lacking aggravating factors”.

“For instance, 308 of 452 sexual offence completed cases (68 per cent) were for sexual intercourse with a person under 16, typically between close-in-age peers, suggesting adolescent relationships rather than predatory acts. This clogs the programme, diverting resources from comprehensive sexual education toward cases better handled through non-criminal support, such as codified close-in-age exemptions in law,” JFJ said in the report.

The group said it had found that among completed cases, sexual offences — particularly consensual sexual intercourse with a person under 16 — account for the majority (62 per cent), followed by assault-related offences (15 per cent), property crimes such as larceny (seven per cent), disorderly conduct and indecent language (two per cent), and drug-related offences like marijuana possession (one per cent).

It said while serious offences, including rape and sexual assault (2.5 per cent) and firearm-related offences (one per cent), are less prevalent, they underscore concerns about the scope of judicial discretion and the programme’s capacity to handle complex cases effectively.

On Monday, Jade Williams, JFJ’s policy and advocacy specialist, said the 62 per cent was likely due to the fact that the minors are having “consensual relations”.

“And so the court, rather than criminalise these behaviours, put the children through the diversion programme. But this also means that the diversion programme will end up using resources that could be applied to more so criminal matters on social matters that may require more psychosocial intervention rather than diversion intervention,” Williams said.

JFJ has, in the meantime, called for the legislative shift to be complemented, “with binding prosecutorial guidelines for the director of public prosecutions to divert or dismiss non-predatory cases, mandating referrals to family counselling or sexual health programmes via the Ministry of Education and the Child Protection and Family Services Agency (CPFSA) instead of courts or the Child Diversion Act”.

“These reforms would decongest diversion programmes by up to an estimated 40 per cent for sexual cases, reduce stigma on peer relationships, redirect resources to preventive education, and align Jamaica with international standards like the UNCRC [United Nations Convention on the Rights of the Child] and acceptable youth justice approach — treating adolescent exploration as a health matter, not a crime,” JFJ maintained.

The group has also called for a review of the offence of grievous sexual assault under the Sexual Offences Act.

Under Section 4(1) of the Sexual Offences Act, grievous sexual assault encompasses any unlawful non-penile penetration — such as digital insertion, oral sex, or object use — with Section 4(3)(b) noting that the circumstances described in the section are applicable when the victim is under 16, without regard for consensual peer dynamics.

According to the JFJ, this, “broad scope criminalises mutual adolescent acts absent any defences”, while grievous sexual assaults’ exclusion from Child Diversion Act Schedule 1 — due to its felony status and life-sentence potential — forces police into mandatory charging without discretion, thrusting children directly into formal court proceedings.

According to the JFJ, “although the imposition of the statutory maximum of life imprisonment is unlikely, the offence’s grave classification still inflicts harm through extended litigation, school absences, social stigma, and trauma, circumventing diversion as the preferred first response and straining justice resources”.

It has proposed that legislators adjust by enacting, “close-in-age exemptions; tier grievous sexual assault for summary jurisdiction in parish courts to clarify handling; and explicitly add the offence to Schedule 1 (of the Act) as divertible, authorising police (subject to the approval of senior law enforcement to ensure diversion only in non-predatory circumstances) and prosecutors to refer such cases immediately to CPFSA or Ministry of Education programmes for counselling”.

Said JFJ: “These targeted changes would shield vulnerable minors from judicial pipelines, reserve grievous sexual assault’s severity for exploitative predation, and prevent system clogging over benign peer interactions”.

The Child Care and Protection Act (2004), and specifically the Child Diversion Act (2018), promote diverting children from the formal justice system, providing alternative interventions. The objective of the legislation is to reduce child incarceration, promote rehabilitation, and address underlying issues.

Jamaica’s Child Diversion Programme, operational since January 2020 under the Child Diversion Act (2018), aims to steer children in conflict with the law away from formal judicial proceedings toward rehabilitative interventions. Governed by the Ministry of Justice, the programme prioritises rehabilitation over punishment, aligning with international frameworks such as the UNCRC and the Beijing Rules.