If you have been watching the news in recent times, you would have seen that one of the hot topic debates has been the issue of whether or not the age of consent for sexual activity in Jamaica should be raised.
Our current authority for this law is found in section 4 (3) (b) of the Sexual Offences Act which states that any of the sexual acts specified in the statute would be considered illegal once carried out on anyone below the age of 16 years. Interestingly, one could consider this statue contradictory given the fact that within its opening section the SOA defines a “child” as anyone under the age of 18 years.
However, before we descend into the arena of debate which will most likely be fuelled by our own views of morality and personal idealisms, we must examine why this has become an issue yet again and what it would possibly mean legally and socially if this law was amended.
The Age of Consent issue
The proposal for raising the age of consent was brought before parliament by the head of the Office of the Children’s Registry, Diahnn Gordon-Harrison who felt that this would be the best solution to protect the most vulnerable members of our society; our children. She gave a number of reasons that the passing of this law would be beneficial to society, namely:
- The current state of the law does not allow for many of the older offenders who take advantage of the younger members of society to be criminalised as they are relieved of liability once the 16 year old says that they have consented.
- The amendment would give these young members of society (particularly 16 year old females) the opportunity to abstain for longer periods of time as the law could be used as a tool to ward off those who would want to tempt them into having sex.
- This could redound into reducing the amount of teenage pregnancies which tends to show a large increase once young girls become 16.
- Additionally, a caveat would be put in place for those who have sex underage with other teenagers, that is, the ‘close in age law’.
These all seem like valid considerations as we cannot ignore the state of our society today. The Jamaican landscape is riddled with many teenage mothers who were forced to drop out of school and postpone their education due to teenage pregnancies. This has resulted in greater stress on the government as they have to act to stymie the possible fallout of this vulnerable group by putting certain catchments in place like the PATH programme.
It is important to note that this initiative does not only benefit teenage mothers and would not be likely to stop if this occurrence was reduced. However, such a large vulnerable group would have an impact on the amount of money that the government would have to spend to assist them. There is also additional proof that once young ladies become mothers as teenagers, they are likely to become pregnant on multiple occasions without any more support from the fathers of their children.
With all this considered, why is Parliament even hesitating to amend the law?
Before such a law is amended, we must consider what effect that this alteration will have on the legal landscape. Firstly, once the law is amended it may result in the criminalisation of a greater cross-section of individuals. We cannot deny that there is a high level of sexual activity within our society, particularly amongst our youth. It was for this reason that Mrs Gordon-Harrison suggested that the law allows the ‘close in age’ defence that gives those who have sex with a youth who would be considered legally underage but are themselves close to the age of the offender.
Despite this fact, there are many in the society who have sex with youth who are far from their age group, therefore, denying them this defence. This means that these individuals would have to be charged, tried and sentenced in an already oversaturated justice system that already lacks the resources to deal with the cases that are currently on the books. The current state of our economy does not help to satiate this issue either. Therefore, the government would have to manage to find major resources to deal with this issue or else we would have a society with more individuals falling into to the criminal category never actually being able to be prosecuted.
Secondly, the entire law as it pertains to sex offenders would have to be given more teeth to at least deter the lecherous in our society who are hell-bent on terrorizing our youth from committing these crimes. This was the opinion of ‘The Star’ contributor Leighton Levy on this amendment to the law. He believed that this predatory behaviour where older men would prey on young girls would never end, even with the amendment to the law, if it isn’t given more ‘teeth’. This is a sentiment I personally agree with. Soft jail time is not enough to prevent men, who probably would have been doing these acts for years, from receiving sexual gratification from these young girls. Though I wouldn’t suggest resulting to any draconian methods I believe that the law would need to have greater penalties to really deter these individuals.
Parliament would also have to consider the social landscape before amending the law to ensure that the provisions adequately fit the current temperature of society. Thus, we are brought to the controversial law and morality argument that has been happening from time immemorial. To paraphrase the Jamaica Constitution, section 49 states that Parliament is to make laws for the order and good governance of society. This, in the minds of many, would mean that Parliament is to pass laws that would uplift the moral standings of society; making the amendment to this law a no brainer. It is important to note that this age was raised in 1988 for similar reasons as was posited today.
However, one cannot assume that their morality is of the same nature as that of the other members of society. That is to say that though many, especially of a Christian persuasion, would believe that teenagers having sex is immoral and against God’s wishes; there are many who believe that this behaviour is normal and tantamount to growing up and maturing. It is easy to sit on one’s high horse of morality and look down on those who fall below your standard. It is easy to think that your opinion will bring the desired result to everyone who follows the law, but social reality tells us that this is simply not true.
For many even if the law is changed their attitudes and actions would remain the same. This is due to the fact that their behaviour was never influenced by the law but by their environment. Most youth are encouraged to begin sexual experimentation by their relatives and friends who think that this is the true sign of maturity. The majority of music produced by members of our society basically promotes sex and violence as the few worthwhile pastimes of our generation. Additionally, our sexual appetite is awakened early just by television advertisements and shows. We are a society saturated with sex and not with law.
Another common opinion espoused by many is that the increase in the age of consent will give youth, particularly girls the opportunity to pursue their education and qualify themselves. This is especially since 16 is the general age that most students do CXC which is the main requirement for qualifying for University. However, what many don’t realise is that teenage girls may even pursue older men to help them finance their education.
It is no secret that Jamaica is not in the best socio-economic standing, thus making it more difficult for parents to finance their education. Many young people are therefore, encouraged to seek help from others who will use sex as their accepted payment for financial support. This can mean that the amendment of the law may have no effect on these transactional relationships but to criminalise the men who provide these young girls with money. Thus, it can further deter these girls and their families from reporting these predators. This may be counterintuitive to what the law would desire.
Lastly, many in our society do not take the law seriously. They would therefore, have to be re-educated about the importance and sovereignty of the law and how it serves to protect us. Additionally, the public would have to be re-educated about the importance of childhood and the sanctity of this stage. This could help parents to be more ardent in protecting their children and help this stage to be one of the most productive and protected stage of their lives.
It is truly my opinion that the age of consent should be raised as I believe that it is the delay in having sex that may help youth in a heavily saturated society to keep their focus and continue to move forward and pursue higher education and specialisation. I also have witnessed the stalling effect that teenage sex and subsequent pregnancy can have on one’s life.
Growing up I saw many girls who I respect and who had major career ambitions have to put a pause their journey to support the babies that they have brought into the world. The fact is that early sex, without proper education has a negative impact on our youth and the society at large.
However, before this law will have real effect, the society has to be re-educated about the importance of abstinence and safe sex, the penalties for the breach of this law will have to become more punitive and the legal system will have to be financed to ensure that all these cases can be tried and sentenced in a timely manner. Though this may take time, I believe that it can be done and that our society will experience great benefits from this.
Second Year Student
Faculty of Law, UWI Mona
Contributor, Mona Law Precedent
Co-Chair, Publications Committee
 Along with the purchasing of the ‘Outameni’ facilities by the NHT and the brewing conflict between the DPP and head of INDECOM
 From henceforth referred to as the SOA
 a point that would be expanded later
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