Sherry-Ann McGregor, Contributor
Sherry-Ann McGregor
IN LAST week's article, I stated that most cases of teenage pregnancy ought to result in criminal prosecution. This is because statutory rape and teenage pregnancy often go hand in hand.
Statutory rape exists by virtue of the Offences against the Person Act, which criminalises sexual activities with girls who are under the age of 16 years. The presumption is that a girl is legally incapable of consenting to sexual intercourse until she reaches the age of majority. Laws such as these became a part of our legal system through the English common law which set the legal age of consent at 10 in 1576.
Statutory rape laws in most jurisdictions focus exclusively on females, because the laws were originally intended to protect the chastity of young women. There is currently no corresponding provision with respect to sexual intercourse with young men. Does this mean that it is acceptable for adult women to exploit boys? One wonders why the
bill to amend the Offences against the Person Act to make the sexual offences such as rape gender neutral has been in abeyance since 1996.
MINORS CANNOT CONSENT
An essential element of the crime of rape is the "absence of consent", which does not require proof of force. For statutory rape to be proved there is no need to prove that there was absence of consent, because it is presumed that the minor is incapable of consenting to sexual intercourse. Therefore, although it may be argued that a minor voluntarily engaged in sexual intercourse, these laws effectively negate her ability to consent by subjecting her partner to a criminal penalty for statutory rape.
It is important to note that both statutory rape and rape (in the traditional sense) attract the same maximum penalty - life imprisonment. However, a first-time offender who is 23 years old or younger may rely on a special defence in statutory rape cases where the victim is between the ages of 12 and 16 years. If he had reasonable cause to believe that the young woman was over 16 years old a young man will have a complete defence to the charge. It could therefore be said that these laws are geared towards punishing older men who engage in sexual activities with minors.
SOCIAL COSTS
Statutory rape attracts high social costs, which are borne by the teen mother, her child and the society, and there is no doubt that there are connections between statutory rape, abortion, teen pregnancy, fatherlessness,
poverty and crime. The question then becomes whether the strict enforcement of statutory rape laws will solve any of these problems. In particular, it is uncertain what impact the conviction of such offenders may have on the number of incidents of teenage pregnancy, when only some of the perpetrators of those crimes are adults.
For many years there has been a proposal to increase the age of consent to 18 years, but the consequences of doing so are also dubious. One thing is certain, Jamaica does not stand alone in respect of this dilemma, and much can be learnt from the experience of others.
Sherry-Ann McGregor is a partner and mediator in the law firm of Nunes, Scholefield, DeLeon & Co. Send feedback and comments to lawsofeve@yahoo.com. Note: The Property (Rights of Spouses) Act and the Maintenance Act came into effect on April 1, 2006.
