Recently the President of the Court of Appeal was in the media calling for the repeal of a section of the Offences against the Person Act (hereinafter called "the Act"), which provides a complete defence to a young man on a first charge of carnal abuse provided certain conditions are satisfied. There seems to have been little reaction from the public but one hopes that the silence of the public does not mean consent.

It is important to understand the offence of carnal abuse. Carnal abuse is committed when a male person has sexual intercourse with a female person who is under the age of consent which is 16. Section 78 of the Act tells us that to prove carnal knowledge it is not necessary to prove emission of seed (ejaculation) but it is complete upon proof of penetration only. Whether or not a girl under 16 agreed to having sexual intercourse is not material on a charge of carnal abuse because such a girl cannot consent as a matter of law. Rape, however, is when a man has sexual intercourse with a woman without her consent, that is, by fear, force or fraud. Any man may be indicted for rape of any female of any age. Carnal abuse is, therefore, different from rape.

Section 48 (1) of the Act provides: "Whosoever shall unlawfully and carnally know and abuse any girl under the age of twelve years shall be guilty of a felony, and being convicted thereof, shall be liable to imprisonment for life."

It is also worthy of note that Section 50 of the Act provides that: "Whosoever shall unlawfully and carnally know and abuse any girl being above the age of 12 years and under the age of 16 years shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to imprisonment for a term not exceeding seven years:

The young man's defence

Provided that in the case of a man of twenty-three years of age or under, the presence of reasonable cause to believe that the girl was over the age of sixteen years shall be a valid defence on the first occasion on which he is charged with an offence under this section."

In relation to girls under 12, the offence is a felony and the law affords no defence to a man, even a young man, who has sexual intercourse with girls of such age. In relation to girls over 12, it is no secret that many girls, particularly the teenagers, look and act like they are at least 16 years and older. It is also no secret that some of these girls have seduced and encouraged some of these young men to have sex with them and in some of these cases these young people have relatively steady relationships. In light of this, one must ask why boys at 17 or young men between 17 and 23 MUST go to prison even if a court is convinced that the young man has reasonable cause to believe that the girl was over 16 years old. It should also be noted that in most of these situations the sexual contact is consensual and there is no penalty for girls who lied or encouraged the relationship or sexual contact. The outright abolition of the young man's defence could, in my view, cause injustice in appropriate cases.

It seems to me that if any amendment is to be done to the law it ought to be in providing some penalty or appropriate remedial measures to those young girls who lied about their age and encourage these young men to get into trouble. Admittedly, the law is drafted for the protection of these young girls but in some of these situations some of the girls are far from being innocent and in an appropriate case the law should provide sanction to discourage this kind of behavior from young girls.

There are many young teenage boys who believe that the law of carnal abuse does not apply to them but only to 'big men'. The schools and other youth-centric institutions need to also educate the boys not only that it is immoral and unsafe to have sexual intercourse at their age but also that it is against the law and that they can be imprisoned, if the girl is not over 16 years old and that she gives her consent.

AGE OR WEIGHT OF CONSENT?

As an aside but certainly on a related matter, it was brought to my attention recently by a young mother that she has to watch the weight of her daughter as some of those who prey on these young girls now have a new standard. It is not the age of consent but the weight of the consent so those girls who are "weighty" are obviously more at risk. This is sad news but where the culprits are caught, tried and convicted, the law must take its course with the full weight put to bear on these offenders.

Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at:

knbishop@gmail.com or

knb@bishopfullerton.com