Parliament studies raising the age of consent
CHILDREN’S Advocate Diahann Gordon Harrison thinks that Jamaica can learn lessons from Canada about increasing the age of consent.
She noted that in May 2008, by virtue of its Tackling Violent Crime Act, the Canadian Parliament amended its laws and increased the age of consent.
But, although they only increased the age from 14, as it had been since 1890, to 16 years, which is similar to Jamaica’s, she felt it supported the view that it is generally expected that governments should enact laws best suited to their domestic realities.
“It is perfectly acceptable, and even expected, that domestic government(s) should pursue and enact laws which are best able to address their domestic realities,” she told the joint select committee of Parliament reviewing the sexual offences Acts at Gordon House last Wednesday.
She said that the Canadian law was precipitated by the case of a 31-year-old male predator who travelled from his home in Texas in the United States to Canada to meet a 14-year-old boy, with whom he had communicated on the Internet.
The man engaged the child in sexual activity and committed the act of buggery upon him. However, when he was arrested, he could only be charged with the relatively minor offence of possession of child pornography, because the young boy, who reportedly suffered from suicidal tendencies and social anxiety disorder, insisted that he had consented to the sexual activity.
“Additionally, because there was no relationship of authority or dependency, there were no other alternatives open to law enforcement,” she explained.
In June 2006, the Canadian Government proposed a bill to raise the age of consent from 14 to 16, while creating a close-in-age exemption for sex between 14-15 year olds and partners up to five years older, and keeping an existing close-in-age clause for sex between 12-13 year olds and partners up to two years older.
The initiative also maintains a temporary exception for already existing marriages of 14 and 15 year olds, but forbids new marriages like these in the future.
Gordon Harrision said that another reason for increasing the age of consent was to help teenagers feel less pressured to have sex at a younger age, as it provides an effective negotiation tool for those who may be more inclined to say no to early sexual activity, because the law has set the tone by making it illegal.
She said, however, that she was not proposing that the Canadian initiative should be a blueprint which would bind Jamaica in any particular way.
“If this honourable committee finds favour with the idea and the theory of it, it would be for us to craft carefully established age bands that this particular Parliament would be comfortable with, and move forward with what is actually acceptable here,” she stated.
“So, the ages were merely presented as a form of providing an example as to how that particular model works in Canada,” she added.
Opposition MP Delroy Chuck said that he we would support moving the age of consent to 18, but was afraid of the effect it would have on the population at large.
“In other words, you have to look at the reality of the Jamaican population at large and ask, Are we going to criminalise some practices which (already) exist? The answer may well be yes, because we need to protect these young people, as you are advocating. But, you know, one has to be careful about what we do and the effect it will have on practices that exist now in our community,” Chuck explained.
Chairman of the joint select committee and minister of justice, Senator Mark Golding, felt that Parliament has to be very careful about any adjustment to the age of consent that would exacerbate an existing problem.
He said that there was an existing problem of teenagers being dragged through the criminal justice system.
“So, if we are going to move it to 18, the defences need to be carefully crafted, so that you don’t have a proliferation of youngsters who are doing the things that youngsters have been doing for centuries now being criminalised, at a time when they should be focusing on school and their careers and other things,” Golding said.
“I am not averse to the concept of a higher age of consent, but the ramifications of that have to be carefully thought through, and defences have to be crafted in a way that don’t exacerbate the problem that we have now,” he stated.
Government senator Wensworth Skeffery said that his concern was how many men who have been involved in making girls below the age of 16 pregnant have actually been arrested, charged and convicted.
“This is a national, social problem. We see young girls under 16 getting pregnant, they go to the hospital and the clinic, they register the child and we behave as if it is the norm. My fear is that by moving from 16 to 18 years old, you are just creating a broader band of criminals,” he said.
Government Senator Sophia Frazer Binns said that she was unsure exactly what was the mischief that the Office of the Children’s Advocate (OCA) was trying to correct.
“Whereas I agree that there ought to be judgement for the predators, I am wondering if you have statistics to show how many teenagers have been having sex with other teenagers within the age group, and with those over 18?” she asked.
“To me, sex is sex, and if you are having sex as a teenager, whether you are 16 or 17, then it should not be allowed,” she argued.
The children’s advocate said that she was not proposing that it is okay for 16 year olds to have sex with 16 year olds.
“What we are saying is that there is a particular reality that exists in Jamaica now, and we are seeing children who are having, whether it is experimental sex, or whether they are accustomed to doing it, we are seeing children having sex. There is a health issue because of it, and there are serious concerns that flow from it,” she insisted.
She said that she was also pointing out that there is a need to have all children under 18 protected.
“And what we are saying is that to address this reality, we are proposing the closed age group as a means, perhaps of rescuing our children from being criminalised; because, if it is that children go through the criminal justice process, there are certain negative consequences that they may be exposed to. So, it is not a licence,” she countered.
In other words, Senator Golding intervened, it is a different approach to managing the problem, rather than pushing it through the formal court system, with all the trauma that entails for a defendant or a victim.
“It is perhaps a more enlightened and effective approach to getting better results than the traditional formal criminal justice would bring to somebody, who is essentially behaving in a manner that is inappropriate but is not a predatory practice, as such,” he explained.
Opposition Senator Kamina Johnson Smith said that it is a fact that what is currently in place is not working and she is totally open to solutions.
“If you can find something that can work, or will work or is reasonably likely to work, I am all for it. But I am not convinced that moving the age of consent to 18 is part of the arsenal that our society needs for the dysfunction that we are currently experiencing,” she stated.
She noted that the three primary reasons given by the children’s advocate for raising the age of consent were: that children will feel less pressured to have sex; that there will be legislative cohesiveness and compliance with the international convention on the rights of the child; and that it will make it easier to protect children from predatory behaviour.
“But, I fail to see how moving the age of consent is going to assist us with the problem of adults having sex with children,” she stated.
Senator Johnson Smith said that she was not sure that the age of consent was the root of the problem.
“I think that one of the problems we have had generally, as a society, is a problem with misdiagnosis: So we jump around the box with solutions, but the challenge is that we haven’t really diagnosed the problem correctly,” she said.
“I would like to understand the link that you draw; whether there is any study that shows that an increase in the age of consent assists with any of those things,” she said.
Gordon Harrison said that the OCA has looked at statistics available from the Registrar General’s Department (RGD), in relation to the ages of persons, between 10 and 19 years, who are giving birth.
“The last year that we have this information for is 2011, because the RGD has changed the way in which it disaggregates data. At age 11, we only had one person being pregnant and delivering a child in 2011; at age 12, the number went up to eight; at age 13, we had 14 births; at age 14 the number increased to 125; at age 15 we had 339 such births; at age 16 the number jumped to 795; at age 17, we had 1,494; and, at 18, it went up to 2,060.
“These are live births, and we also have figures for teen pregnancy, which we use to measure the scope of the problem,” she said, noting that the UN Population Fund’s State of the World Population Report 2013 had indicated that currently Jamaica has the fourth highest incidence of adolescence pregnancy in the Caribbean, at 71 per 1,000 adolescent girls.
She said that 108 out of every 1,000 babies born in Jamaica are born to teenage mothers, and that 25 per cent of babies born in Jamaica were to girls between the ages of 10 and 19 years old.
“Because even though they are under mommy and daddy’s roof and the rule is one thing, the law sanctions free consent to sex… So, we are making the argument that the spike in the number of births, coupled with these individual cases, is perhaps indicative of the very relaxed approach that kicks in with some teenagers at 16,” she said.
Senator Golding pointed out that one of the arguments for raising the age of consent to 18 was that, at least, there would be a basis for convicting the predator, if the evidence can be obtained.