Criminal Law: Sexual Offences: Law amendment

This appeared in today's edition of the Gleaner Newspaper :

Sex laws report for Senate tomorrow
published: Thursday June 7, 2007

Far-reaching proposals contained in a report drafted by the parliamentary committee, which examined the Offences Against the Person Act and the Incest Punishment Act, will be tabled in the Senate tomorrow.

The committee wrapped up its final meeting in Gordon House yesterday, after putting the finishing touches on recommendations to amend laws relating to rape, incest and other sex crimes.

Changes proposed by the committee over its seven-month-long sitting will afford more protection to vulnerable persons, including the mentally challenged, women and children.
Chairman of the committee, Senator A.J. Nicholson, who is also the Attorney-General and Justice Minister, said the report should be debated in less than two weeks.

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Preparing new legislation

He said the Office of the Chief Parliamentary Counsel had the task of preparing new legislation, which would be reviewed by Cabinet and introduced in the House for debate before the end of the calendar year.

Highlighting some key areas covered in the report, Senator Nicholson mentioned the definition of rape and sexual intercourse, marital rape, abolition of the common law presumption that a boy under 14 years was incapable of committing rape; incest and related matters.

Senator Nicholson argued that the companion pieces of legislation impacted mostly on young women.

He explained that certain activities that were reported to have taken place in schools, were alarming.

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Another interesting incest case was reported in the Observer today as well.

Schoolboy remanded for having sex with mother

By T K WHYTE Observer correspondent

Thursday, June 07, 2007

SPANISH TOWN, St Catherine - A 15-year-old schoolboy who pleaded guilty to having sexual intercourse with his 44-year-old mother, who the police described as an imbecile, was remanded to a place of safety Tuesday, when he appeared in the Spanish Town criminal court.The boy's father was charged with aiding and abetting the offence, and was offered $80,000 bail with surety. They are return to court on July 3 when the case will again be mentioned.
The boy was charged with incest and defilement of a female imbecile, while his father was slapped with charges of aiding and abetting carnal abuse and aiding and abetting the defilement of a female imbecile.
Senior St Catherine resident magistrate Lorna Errar Gayle also ordered that the court apply to the Director of Public Prosecutions for a nolle prosequi, to allow the case to go directly to the St Catherine Circuit Court for trial.
Detective sergeant Kirk Roach of the Guanaboa Vale police told the court that between December 2006 and January this year, the boy confessed to sexually assaulting his mother six times in the one room shack where he lives with his parents and three sibblins.
Although the mother reported her son's behaviour to his father - her common law husband - he took no action, and when she became tired of her son's abuse, she told neighbours who alerted the police.A visibly distraught Errar Gayle questioned the boy, who admitted to having sexual relations with his mother, and using a condom "one of the time."
The father told the judge he knew his son was "troubling him mother". "I talk to him and beat him two times and tell him not to go back and (I) move him out of the room," he said.
The police's account of the family also prompted the judge to order the Child Development Agency to investigate.According to the police, the father and his common law wife live with their three other young children at the house under deplorable and unsanitary conditions.
One of the children, a nine-year-old girl, reportedly had a wound to the head which was infected by maggots.The father told the judge that he had filled the wound with crushed crackers and corn meal to stop the maggots, but it did not help, so he took her to a doctor who had given him a prescription which he had not yet filled.

Criminal Law: Sexual Offences : Carnal Abuse

Statute : The Offences Against the Person Act

Section 48 : Carnally knowing girl under twelve.

(1) Whosoever shall unlawfully and carnally know and abuse any girl under the age of twelve years shall be guilty of felony, and, being convicted thereof, shall be liable to imprisonment for life.

(2) Any person who is convicted of an attempt to have carnal knowledge of any girl under the age of twelve years shall be liable to imprisonment for a term not exceeding ten years.

Section 50: Above twelve and under sixteen.

Whosoever shall unlawfully and carnally know and abuse any girl being above the age of twelve years and under the age of sixteen years shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to imprisonment for a term not exceeding seven years: Provided that in the case of a man of twenty­three years of age or under, the presence of reasonable cause to believe that the girl was over the age of sixteen years shall be a valid defence on the first occasion on which he is charged with an offence under this section.

78. Proof of carnal Knowledge.

Whenever upon the trial of any offence punishable under this Act, it may be necessary to prove carnal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only.

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**UPDATED : MAY 16, 2007**

** 1. "...while the Offences Against the Person Act stipulates that a man prosecuted for carnal abuse receives a sentence of life imprisonment, a man between the ages of 20-23 can be found guilty of only a misdemeanour, if he can prove he had reasonable cause to believe the child was over 16 years old the first time he is charged for the offence." Read this article which appeared in the June 4 2006 edition of the Gleaner.

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**2. The following article appeared in the Jamaica Observer on November 27, 2006 :

17-year-old sentenced to 3 years probation for carnal abuse
reported in the Jamaica Observer by Paul Henry

Monday, November 27, 2006

A judge jokingly told a 17-year-old youth who was sentenced to three years probation for carnal abuse in the Home Circuit Court on Friday to temporarily quit studying Biology in school as he had already completed the practical.
Justice Lloyd Hibbert made the comment after Attorney-at-Law Jean Barnes informed him that her client - a former Calabar High School student - was furthering his studies. As Barnes mentioned the subjects her client was pursuing at his new school, the judge interrupted when she listed Biology among them.
"Biology?" Hibbert asked. Hibbert then told the youth to drop Biology for a while as he had already "done the practical before the theory".Last June, a 13-year-old girl told her mother and the police that the youth was her "boyfriend" and that the two had had sex.
The girl left home for school on June 13, and when she did not return home her mother made a report to the Lawrence Tavern police in St Andrew. The youth was arrested and charged on June 19 for having sex with the girl. Based on information the mother received, the two were found at a house in Lawrence Tavern.The youth recently pleaded guilty to carnal abuse. Barnes told the court that the 13-year-old was introduced to her client by a mutual friend, and that the girl had expressed a desire to have sex with him.
Barnes added that adults find it difficult to control their sexual urges, much more a "boy his age" and that under the circumstances, it was difficult for her client to refuse having sex with the 13-year-old.

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**3. The following article appeared in the Jamaica Observer's April 23rd 2007 edition.

Are suspended sentences appropriate for carnal abuse?

Margarette May Macaulay

Monday, April 23, 2007
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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. Read the continuation of the article.