KINGSTON Resident Magistrate and chair of the Eastern Circuit of Children's Courts Paula Blake Powell has cautioned the Joint Select Committee of Parliament considering the Bill to amend the Incest (Punishment) Act against setting a new age range in the Act, with which only persons 16 and over can be charged for incest.

Expressing discomfort with the proposed amendment, which is one of the main areas of change in the Act during Wednesday's committee sitting, Blake Powell said that setting a new age range for incest would only serve to create further anomalies in the legal age ranges of children involved in the criminal justice system.

"If a new age range is instituted now for incest, it could put things in disarray," the resident magistrate warned.
Instead, she pointed to the need to firmly establish the age at which children become criminally responsible for their actions.

"It is fitting and proper that children above the age of capacity be made to bear responsibility if there is untoward sexual activity, especially towards other children who are not in agreement," RM Blake Powell contended, noting that under the 2004 Child Care and Protection Act a child is presumed to have criminal responsibility at age 12.

On the proposed amendments to the 1864 Offences Against the Person Act, which is being jointly considered with the Incest (Punishment) Act, the resident magistrate said the proposal to abolish the presumption that a boy under the age of 14 cannot commit rape or any offence of vaginal or anal intercourse was welcomed as such cases were becoming a common occurrence in the Children's Court.

"We have had matters coming before the Children's Courts and the allegations are so serious, the statements are so serious, as well as the medical evidence. For example, in buggery cases...the court has found that even boys ages 12 and 13 have been brought before the court. The fact is that children 10 years and over have been appearing before the criminal courts charged with carnal abuse, rape, indecent assault, the whole range of sexual offences," RM Blake Powell told the committee.

Noting the controversies surrounding the age of consent, which is now 16 years, RM Blake Powell expressed dismay at what she said has been an alarming increase in incidents of gang rape (battery) of underage girls by boys in similar age groups.

She said the situation, which has been on the rise in rural parishes, often stems from one girl consenting to sexual intercourse with one boy who then blackmails her into having intercourse with other boys.

"It has been happening recently and increasing in rural parishes where a girl and a boy agree to have sex...camera phones are now being used to capture the incident and the threat is blackmail that it will be put on the Internet and shown to every one in the school if she doesn't have sex with other boys as well," the resident magistrate told the committee.

"Now we are having gang (rapes), we are having a lot of that in the Children's Courts...," she added.
"We need to lessen the possibility of more battery occurring. I submit we still need to have our age of consent, but I'm not sure how it would work now," said the RM. She pointed to the fact that certain provisions such as the Health Ministry's 2004 policy guideline for health professionals allowing the provision of reproductive health advice and services to girls under 16 years without parental consent among others presented further difficulty.

Blake Powell also questioned whether with the bill's proposal to make sexual offences gender- neutral, both boys and girls will be charged for the offence.

Children's Advocate Mary Clarke, in making her submission before the committee, said the presumption that a boy under 14 years is incapable of committing rape should be kept. According to Clarke, the 'presumption was not absolute and could be rebutted'. The Children's Advocate said while this was not to be construed as an attempt to deter punishment, the office was not persuaded that removal of the presumption would give an advantage in ensuring proper conviction and justice for the victim.

At the same time, she urged the committee to ensure that the sentencing provisions for individuals who sexually assaulted mentally challenged and disabled persons "reflect the seriousness of the offence".

According to Clarke, there was a "tendency for children with disabilities, especially those who cannot speak, to be targeted".

She also appealed to the committee to consider giving the courts more to work with in terms of technology, noting that more convictions could be made if this was available.

The main areas of change for the Incest Punishment Act will be to create a single, gender-neutral incest offence by persons of 16 years and older and broaden the scope of persons who can be found guilty of the offence to include, among others, aunts and uncles, nephews and nieces and persons in loco parentis relationships (persons, not parents, in parental-type relationships with children). It also provides for the re-classification of the offence of incest as a felony, with a maximum penalty of life imprisonment (as is the case for rape).

- dunkleya@jamaicaobserver.com

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