The creation of a Sex Offender Register in Jamaica has been receiving much attention in recent times. The Sexual Offences Act, 2009 forms the legal basis for the creation of this Register. However, the changes brought about by this Act in the regulation of inappropriate sexual behavior is more far-reaching than the Register and represents somewhat of a paradigm shift in comparison to previous regulation, primarily under archaic common law and the old Offences Against the Person Act, 1864.
The Sexual Offences Act emphasizes the protection of children under the age of 16 years. Accordingly, several offences are specified for punishment when committed against children under 16 years. The offence of grievous sexual assault covers a broad range of sexual activity and is stated to be sex inflicted by penetration of vagina or anus by the penis, a body part other than the penis (eg. fingers, hands), or by an object manipulated by the offender; use of the mouth on the vagina, anus, vulva or penis; putting the penis into the victim’s mouth, among other things. This offence is made out where the victim did not consent or where the offender did not care whether the victim consented, or strictly where the victim is under 16 years old. In addition, there are also offences related to sexual touching or interference with children, sexual grooming of a child (that is, meeting or communicating with a child with the intention of committing a sexual offence), sexual intercourse with a child, indecent assault of a child, and inducing or knowingly allowing a child to be upon ones premises for the purpose of having sexual intercourse. The Act also deals with several offences related to abduction and abduction of children under the age of sixteen (16) years receives special treatment in various parts of the Act. It is also clear from the legislation that offenders may be charged for victimizing both male and female persons.
The legislative provisions regarding the offence of sexual grooming of a child have the effect of being able to capture sexual predators who communicate with children via the Internet, telephone or text messages. Operators of commercial properties for short-term accommodation, such as hotels and motels, also have to be careful. If the owner, tenant, manager or supervisor of the establishment knows that a child is being admitted for the purpose of having sexual intercourse, that person may be guilty of a criminal offence under the Act. It will be interesting to see whether the court’s interpretation of this particular provision and its application will cover persons who turn a blind eye and then contend that they did not know the purpose for which a child was upon the premises.
Another interesting aspect of the Sexual Offences Act is the creation of the offence of marital rape. By this reference, one may think that this offence covers rape by a husband in any marriage. But, this is not so. Marital rape may only take place where the couple has separated, or there is a separation agreement, or on-going divorce proceedings, or there is a restraint order against the husband, or the husband knows that he has a sexually transmitted disease (presumably one that he did not contract from his wife). Note that there is no equivalent offence committed by a wife against her husband in similar circumstances.