By Dr. Kim Kyte-Thomas
The September 12, 2024 Headlines shocked an entire nation and caused public outrage.
11-year-old girl gives birth at Georgetown Hospital; Police launch investigation – News Source
Perpetrator arrested, DPP to advise on charges following incident with girl, 11 – Newsroom
It was reported that the matter was previously investigated, leading to the arrest of a male by the Police. The file is currently with the Office of the Director of Public Prosecutions for advice on the charge to be laid against the perpetrator.
In Part 2 of this series, we examined some of the sexual offences where the victims are children. Rape, sexual assault, causing a child to watch a sexual act, and meeting a child following sexual grooming are just a few of the child sexual offences contained in the Sexual Offences Act, Chapter 8:03. In this article, we shall examine the remaining child sex offences as prescribed by the Sexual Offences Act.
In today’s society, the internet is a huge part of how people communicate. Children and teenagers have easy access to the internet, and they can become easy targets for pedophiles and predators. Therefore, we shall also focus on the offences of child pornography and child luring as contained in the Cybercrime Act 2018.
Offences Against Children (cont’d)
- Sexual Activity with a child family member
Section 16 of the Sexual Offences Act creates the offence of sexual activity with a child family member. This may be more commonly known as child incest. This offence is committed where three elements are satisfied:
- Sexual Activity
Sexual activity with a child under section 16 includes touching of the genitals or other body parts in a sexual manner, whether directly or indirectly, groping, fondling, and penetration.
This touching or penetration can be by the accused himself or herself with the complainant, that is, between the family member and the child. This offence can also arise where the accused family member causes the child to engage in touching or penetration with another person. Finally, the offence may also arise where the family member causes the child to perform sexual acts, including masturbating.
- Family Relation
To constitute incest, the relation between the accused and the complainant must be a familial one. The degree of family relations described in section 17 includes blood relations, namely:
- Biological parents;
- Grandparents;
- Brothers and sisters, including half-siblings;
- Uncles and aunts; and
- Cousins.
Section 17 also includes instances where the accused and the child have lived in the same household and/or where the accused has been or is involved in the care of, training, supervising, and has been solely in charge of the child and/or is or was a:
- Step-parent (whether through legal marriage or cohabitation);
- Step-sibling; or
- Foster parent (whether former or present).
- Age
For most child sex offences under this Act, the age of consent is 16 years. However, for the offence of sexual activity with a child family member, the child must be under the age of eighteen (18) years for the commission of the offence.
- Consent
Once the conduct of the sexual activity and the two other elements listed above are proven, there is no need to prove consent. Once the degree of familial relationship is proven, the offence is said to have been committed unless the accused can provide evidence to the contrary that calls into question whether the accused knew or could have reasonably known that they were related.
According to section 17(4), the offence is not committed in two instances:
- The complainant has attained the age of eighteen (18) years old or over and the accused and the complainant are lawfully married; or
- A sexual relationship between the accused and the complainant existed immediately before a family relationship, as prescribed in section 17, commenced.
The penalty imposed on a person who commits this offence is:
- Imprisonment for life where the sexual activity included sexual penetration;
- A fine of one million dollars and imprisonment for five (5) years on summary conviction;
- Imprisonment for fourteen (14) years on indictment.
- Sexual Activity with a child by abusing position of trust
The above offence is captured by section 18 of the Act. This offence is committed where the accused adult, who is in a position of trust, engages in any sexual activity with a child.
This offence has three elements which are to be satisfied for the accused to be held guilty, namely:
- Sexual Activity
We have examined what constitutes sexual activity several times throughout this series. Sexual acts mainly include touching in a sexual manner and penetration.
As explored above, the commission of these sexual acts may be between the accused and the child; the accused causes the child to do said acts with a third party or causing the child to perform the said acts on himself/herself, such as masturbation.
- Position of Trust
For this offence to be satisfied, the accused adult must be in a position of trust, or he or she knows or is reasonably expected to know that he or she is in a position of trust owing to the existing circumstances. A person will be held to know or is reasonably expected to know that he or she is in a position of trust unless evidence is presented to raise the question as to whether the accused actually knew or could be expected to know that he or she was in a position of trust.
Section 19(1) (a), (b), and (c) lists positions of trust which would satisfy the above offence where adults either care for, train or supervise children or have unsupervised contact on an individual or collective basis. These include:
- Persons who look after children detained in an institution by virtue of a Court order or under any law. This includes:
- Probation Officer
- Social Worker
- Caregiver
- Persons such as doctors, nurses, caregivers, etc., who look after children who are housed in the following institutions:
- Hospital
- Independent clinic
- Care or residential home or private home
- Community home, shelter, children’s home or orphanage
- Persons who look after children at an educational institution such as a school. This includes:
- Teacher
- Headmaster or mistress
Notably, there are other circumstances listed in section 19(1) which amount to positions of trust; however, they are not applicable for the offence of sexual activity with a child by abusing a position of trust.
- Age
This offence is committed with any child who is under the age of eighteen (18) years.
- Consent
As previously mentioned for the previous offence, once the three elements described above are proven, there is no need to prove consent, and the accused is said to be guilty.
Notably, section 18(4) does state two instances where the offence is held to have not been committed:
- The complainant has attained the age of eighteen (18) years old or over and the accused and the complainant are lawfully married; or
- A sexual relationship between the accused and the complainant existed immediately before the accused entered into a position of trust with the child.
The penalty imposed on an accused adult who commits the offence of sexual activity by abusing a position of trust are:
- Imprisonment for life where the sexual activity included sexual penetration;
- A fine of one million dollars and imprisonment for five (5) years on summary conviction;
- Imprisonment for ten (10) years on indictment.
- Obstructing Prosecution
This offence, as prescribed in section 20 of the Act, is satisfied where any person, whether that person is the accused or not, stops or prevents a child from:
- Giving a Police Statement;
- Giving evidence in any other way which would be admissible for the paper committal, such as swearing an Affidavit; or
- Testifying in Court,
as it relates to any of the offences we have discussed in Parts 2 and 3 of this Series.
A person who obstructs prosecution, that is, the process of determining the accused’s guilt, shall be fined one million dollars ($1,000,000) and imprisoned for five (5) years.
- Arranging or facilitating the commission of a child sex offence
Section 21(1) speaks to the offence of an accused intentionally arranging or facilitating the commission of the child sex offences as prescribed in sections 10, 11, 12, 13, and 18, by himself/herself or a third person, or he/she believes that a third person will commit one of the above offences.
This offence, therefore, speaks to instances where the accused has knowledge of and proceeds to set up the commission of a child sex offence, and it also speaks to instances where the accused believes that a third person intends to commit a child sex offence and still proceeds to facilitate such.
In accordance with section 21(2), an adult will not be liable for arranging or facilitating a child sex offence where such person did not intend for himself/herself or a third person to commit a child sex offence. Rather, the accused believed that he/she was setting up something for the protection and safety of the child, prevention of the child becoming pregnant, or the promotion of the child’s emotional well-being.
Where an accused is found liable for this offence, he/she is liable to be fined one million dollars ($1,000,000) and imprisoned for five (5) years on summary conviction and on indictment, to be imprisoned for ten (10) years.
- Child Pornography
Section 14 of the Cybercrime Act creates the offence of child pornography. Child pornography is defined as any visual depiction of a child engaging in real or simulated sexual activity, a sexually explicit pose and the pasting of a child’s face or other parts on the body of an adult or vice versa. The visual depiction of child pornography includes picture, film, video, animation, text, digital image, computer image, AI, and any modified image.
A person is, therefore, guilty of such an offence where he/she:
- Produces child pornography with the use of a computer system (desktop, laptop, tablet, smartphone, video camera, smart TV, a video game console, etc.);
- Makes available, distributes, or transmits child pornography through a company system;
- Obtains child pornography through a computer system for himself/herself or for another person; or
- Has the child pornography on a computer system or stored on an electronic data storage medium (memory card, flash drive, external hard drive, etc.)
Section 14(2) creates a duty for persons or service providers who have knowledge that a person is committing the offence of child pornography to report it to the Police. Where they fail to report it, they too commit an offence: section 14(3).
A person who commits the offence of child pornography or fails to report the commission of such offence shall be liable on summary conviction to a fine of ten million dollars ($10,000,000) and to imprisonment for five (5) years; or on indictment to a fine of fifteen million dollars ($15,000,000) and to imprisonment for ten (10) years.
- Child Luring
A person is guilty of the offence of child luring under section 15 of the Cybercrime Act, where he/she:
- Contacts a child via text, Facebook, Instagram, WhatsApp, etc., with the intent to encourage or persuade the child to have sexual conversations or engage in sexual activities; or
- Arrange a meeting with a child with the intent of abusing or engaging in sexual activity with the child or producing child pornography. Importantly, it matters not if the accused took any steps to effect the meeting.
Section 15(2) creates a duty for persons or service providers who have knowledge that a person is committing the offence of child luring to report it to the Police. Where they fail to report it, they, too, commit an offence under section 15(3).
Where a person commits the offence of child luring or fails to report the commission of such offence, he/she shall be liable on summary conviction to a fine of three million dollars ($3,000,000) and to imprisonment for five (5) years; or on indictment to a fine of eight million dollars ($8,000,000) and to imprisonment for five (5) years.
Conclusion
It is especially heinous for a child to experience the trauma of sexual violence. There are predators in our society who are targeting our children. Those predators need to be brought to justice, made an example, and thus act as a deterrent to other like-minded persons. As adults, we must educate and protect children to ensure, as far as possible, that they do not become victims of sexual violence. Everyone has an important role to play. Children should enjoy their childhood instead of becoming victims of sexual violence and, as in the shocking headlines, becoming mothers at the age of eleven.
