Explanatory Memorandum:It is well recognised in almost all CARICOM States that the trial of sexual offences
often turns out to be hardest on the victims and many are therefore reluctant
to report the offences or to attend court to give evidence.
The provisions of the model law are intended to effect some solution of the problems
concerning the prosecution of offences of that nature, hence it contains-
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(a) a provision for in camera trials which may encourage more victims
to attend court for trial of offenders;
(b) restrictions regarding the adducing of evidence as to the sexual history
of the complainant;
(c) provisions empowering the court to forbid the publication of reports of
certain details of the alleged act;
(d) restrictions on reports as to the identity of both the accused and complainant
in certain circumstances.
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On the question of consent as regards sexual offences, provision is made whereby
the offence is committed where consent is obtained by force or by means of threats
or intimidation, fear of bodily harm, fraudulent misrepresentations as to the
nature and quality of the act or, in the case of a married woman, by impersonating
her husband.
Following the workshop held in Trinidad and Tobago, 9-12 April 1991, it was agreed
that the general approach would be gender neutral and that provisions dealing
with prostitution would be admitted.
The Long Title indicates the scope of the legislation
which is to repeal and replace existing laws relating to sexual offences. In almost
all CARICOM States these offences are included in the general law relating to
offences against the person.
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Subsection (3) provides that no offence is committed where
the minor is the spouse of the male adult.
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Clause 11 provides for an offence where an adult has sexual
intercourse with a minor who is in the adult's employment, or who, by virtue of
the employment is subject to the adult's direction or control or receives salary
or wages directly or indirectly from the adult.
Clause 12 provides for an offence where under circumstances
that do not amount to rape, a person has sexual intercourse with a mentally incapacitated
person who is not the wife or husband of the person charged and who that person
knows or has good reason to believe is mentally incapacitated. A maximum penalty
of (ten) years is provided.
Clause 13 provides for an offence of indecent assault
upon a person who is under fourteen years of age. A maximum penalty of (ten) years
is provided.
Clause 14 provides for an offence of indecent assault
on a person fourteen years and over. A maximum penalty of (Seven) years is provided.
Clause 15 provides for the offence of gross indecency
with a maximum penalty of (five) years.
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Subsection (2) makes an exception where the act is committed
in private between a husband and wife and between an adult female and adult
male both of whom consent.
Subsection (3) provides
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(a) than an act is deemed not to have been committed in private if more than
two persons take part or are present;
(b) consent is vitiated; by fraud or threats of bodily harm or the mental
incapacity of a person with whom the act is committed.
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Subsection (4)defines gross indecency.
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Clause 16 deals with an offence of indecency committed
by an adult woman with a girl under sixteen years of age.
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Subsection (2) provides that the girl shall not be charged
as a party to the offence.
Subsection (3) states that the girl's consent is no defence
to such a charge.
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Clause 17 deals with the offence of sodomy committed by
a male person upon a female. A maximum penalty of (ten) years is provided in subsection
(1).
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Subsection (2) states that the act is complete upon penetration.
Subsection (3) states that the female's consent is no defence.
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Clause 18 deals with the offence of procuring the defilement
of a minor by a parent or guardian.
The offence attracts a maximum penalty of (ten) years if the minor is under fourteen
and a maximum of (five) years if the minor is fourteen or more.
Clause 19 deals with the offence of abduction of a person
against that person's will. S maximum penalty of (ten) years is provided.
Clause 20 deals with the offence of abduction of a person
against that person's will. A maximum penalty of (ten) years is provided.
Clause 21 provides for the holding
in camera
trials for rape, unlawful sexual connection, incest, sexual intercourse with person
under fourteen or with adopted minor, indecency with person under fourteen, indecent
assault, gross indecency, indecency between woman and girl and sodomy.
An exception is made to permit the presence of any member of the public on the
complainant's request.
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Subsection (2) provides for the passing of sentence to be in
public.
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Clause 22 provides that where a parent or guardian is
convicted of the offence of procuring the defilement of a minor, the court may
divest that parent or guardian of legal authority over the minor.
Clause 23 provides that evidence of the sexual activity
of the complainant shall not be adduced.
Clause 24 abolishes the common law rule relating to recent
complaint.
Clause 25 provides for the court to prohibit a report
of certain details of criminal acts in proceedings in respect of rape, unlawful
sexual connection, indecent assault or sodomy if the court is of the opinion that
such prohibition is required in the interest of the complainant.
Breach of an order prohibiting such report may be dealt with as a contempt or
court.
Clause 26 restricts the reporting of the identity of an
accused or complainant after a person has been charged with an offence except
on the application of the complainant or accused to the court to permit such publication
or after an accused has been tried and convicted.
THE SEXUAL OFFENCES ACT
ARRANGEMENT OF SECTIONS
1.
Short title.
PART I - PRELIMINARY
2. Interpretation.
PART II - SEXUAL OFFENCES
3. Rape.
4. Unlawful sexual connection.
5. Matters that do not constitute consent to sexual intercourse or
sexual connection.
6. Inducing sexual intercourse or sexual connection by force, duress
etc.
7. Incest.
8. Sexual intercourse with female under fourteen.
9. Sexual intercourse with a person between fourteen and sixteen.
10. Sexual intercourse with adopted minor, etc.
11. Sexual intercourse with minor employee.
12.Sexual intercourse with mentally incapacitated
person.
13. Indecency with person under fourteen.
14. Indecent assault on person.
15. Gross indecency.
16. Indecency between woman and girl
17. Sodomy.
PART III - PROCURING, ABDUCTION, ETC
18. Procurement of minor
19. Procuring.
20. Abduction, etc.
PART IV - GENERAL
21. Hearings in camera.
22. Court may divest parent or guardian of authority
over minor.
23. Evidence concerning sexual activity.
24. Recent complaint.
25. Court may forbid publication of report.
26. Anonymity of complainant and accused.
MODEL LEGISLATION ON SEXUAL
OFFENCES
AN ACT to Repeal and replace the Laws of [ ] in relation to sexual
offences and for related matters.
Short title
1. This Act may be cited as the Sexual Offences Act.
PART I -
PRELIMINARY
2. (1) In this
Act -
"adult" means
a person eighteen years of age or more;
"brothel" means
a place resorted to by a person of either
sex for the purpose of prostitution;
"minor" means a person under the age
of eighteen years.
(2) For the purposes of this Act sexual
intercourse is complete upon penetration.
PART II -
SEXUAL OFFENCES
Rape
3. (1) A male person commits rape when he has sexual intercourse
with a female person who is not his wife -
(a) without her consent;
or
(b) without believing that
she consents to such intercourse or
is reckless as to whether she consents
or not;
(c) with her consent if
the consent -
(i) is extorted
by threats or fear of bodily harm
to her or to another, or by threats
or fear of the application of
force to her or to another;
(ii) is obtained
by impersonating her husband;
or
(iii) is obtained
by false and fraudulent representations
as to the nature and quality of
the act.
(2) Every male person
who commits rape is guilty of an offence and is
liable on conviction to imprisonment for [life].
(3) A male person under the age
of fourteen years is incapable of committing rape
Unlawful sexual connection
4. (1) A person has unlawful sexual connection with
another person if that person has sexual connection with
that other person -
(a) without
the consent of the other person;
(b) without
believing that the other person
consents to that sexual connection;
(c) with the consent
of the other person if the consent
is -
(i) extorted
by threats or fear of bodily
harm to that other person
or any other person, or
by threats or fear of the
application of force to
that other person or any
other person;
(ii) obtained
by impersonating the spouse
of that other person;
(iii)
by false and fraudulent
representations as to the
nature and quality of the
act.
(2) In subsection
(1) "sexual connection" means
-
(a) a penetration
of the vagina or the anus of any
person by -
(i) any
part of the body of any
other person; or
(ii) any
object held or manipulated
by any other person, otherwise
than for bona fide medical
purposes;
(b) connection
between the mouth or tongue of
any person and any part of the
genitalia of any other person;
(c) the continuation
of sexual connection as described
in paragraph (a) or (b).
(3) A person who is convicted of unlawful sexual
connection is liable to imprisonment for a term not
exceeding [fourteen] years, unless the court is of the
opinion that, having regard to the particular
circumstances of the offence or of the offender,
including the nature of the conduct constituting the
offence, the offender should not be sentenced to
imprisonment.
(4) A husband commits
the offence of unlawful sexual connection
if he has sexual connection with his
wife without her consent where there
is in existence in relation to them
-
5. (1) The fact that a person does not
protest or offer physical resistance to sexual intercourse
or sexual connection does not by itself constitute consent
to sexual intercourse or sexual connection for the purposes
of section 3 or 4.
(2) Nothing in section
3(1)(c) or section 4(1)(c) shall limit the circumstances
in which there is no consent to sexual intercourse or
sexual connection.
6. (1) A person commits an offence if that person induces another
person to have sexual intercourse or unlawful sexual connection with any person
-
(a) by force
or duress;
(b) by false
or fraudulent representation;
or
(c) by administering
to that other person or by duress
etc. causing that other person
to take any drug matter or thing
with intent to stupefy or overpower
that person.
(2) A person who is
convicted of an offence described in
subsection (1) is liable to imprisonment
for a term not exceeding [14] years.
Incest
7. (1) Incest is sexual intercourse between -
(a) parent and
child;
(b) brother
and sister, whether of the whole
blood or the half blood, and whether
the relationship is traced through
lawful wedlock or not; or
(c) grandparent
and grandchild, where the person
charged knows of the relationship
between the parties.
(2) Every person who
is convicted of incest is liable to
imprisonment for a term not exceeding
[ten] years.
(3) It is a defence
to a person charged with incest to prove
that the offence was committed by reason
only that the person charged was under
restraint, duress or fear of the person
with whom the person charged had sexual
intercourse.
Sexual intercourse with person under nineteen
8. (1) Every person who has sexual intercourse with another
person who -
(a) is not the
husband or wife of the first mentioned
person; and
(b) is under
the age of fourteen years, whether
or not the other person consented
and whether or not the first mentioned
person believes that the other
person is fourteen years of age
or more, is guilty of an offence
and is liable on conviction to
imprisonment for [life].
(2) Where a marriage is invalid under
the laws relating to marriages the invalidity
does not make a person guilty of an
offence under this section because that
person has sexual intercourse with the
husband or wife of that person, if the
person believes the other person to
be the husband or wife of the first
mentioned person and has reasonable
cause for the belief.
Sexual intercourse with a person between fourteen
and sixteen
9. (1) Every person who has sexual intercourse with another
person who -
(a) is not the wife or husband
of the first mentioned person;
(b) is fourteen years of age or
more but has not attained the
age of sixteen years; is guilty
of an offence and is liable on
conviction to imprisonment for
[5] years.
(2) It is a defence
to a charge under this section if the
person charged proved that -
(a) the other
person consented; or
(b) the person
charged -
(i) was
under the age of eighteen
years at the time of the
commission of the offence;
and
(ii) had
reasonable cause to believe
and did believe that the
other person was sixteen
years of age or more.
(3) Subsection (2)
shall not apply if it is proved that
the consent was obtained by false or
fraudulent representations as to the
nature and quality of the act.
(4) Except as provided
in subsection (2), it is no defence
to a charge under this section that
the person consented or that the person
charged believed that the person was
sixteen years of age or more.
Sexual intercourse with adopted minor
10. (1) A male adult person commits an offence if he has sexual
intercourse with a female minor who -
(a) is his adopted daughter, step-daughter,
foster daughter or ward and is,
at the time of the intercourse,
living with him as a member of
his family;
(b) not being his adopted daughter,
step-daughter, foster-daughter
or ward and not being a person
living with him as his wife, is
at the time of the intercourse,
living with him as a member of
his family and is under his care
or protection.
(2) A person who commits
an offence under subsection (1) is liable
on conviction -
(a) if the minor is under the
age of fourteen years to imprisonment
for [life]; or
(b) if the minor is fourteen years
of age or more to imprisonment
for a term not exceeding [ten
years].
(3) An adult shall
not be guilty of an offence under subsection
(1) if the minor is the spouse of such
adult.
Sexual intercourse with minor employee
11. (1) Every adult who has sexual intercourse with a minor
who -
(a) is employed by the adult;
(b) is in a common but not necessarily similar, employment
with the adult and is, in respect of the minor's employment
or work under or in any way subject to the adult's control
or direction; or
(c) receives wages or salary directly or indirectly from the
adult, is guilty of an offence and is liable on conviction
to imprisonment for a term not exceeding [two] years.
(2) Except in any case where the minor is under the
age of fourteen years, in any proceedings for an offence
under subsection (1), it is a defence for the adult to
prove that the minor consented to the sexual
intercourse.
(3) An adult shall not be guilty of an offence under
subsection (1) if the minor is the spouse of such adult.
Sexual intercourse with mentally incapacitated
person
12. A person who, under circumstances that do not amount to
rape, has sexual intercourse with another person -
(a) who is not the wife or husband of the first mentioned
person; and
(b) who is and who the first mentioned person knows or has
good reason to believe is mentally incapacitated, is guilty
of an offence and is liable on conviction to imprisonment
for a term not exceeding [ten] years.
Indecent assault on person under fourteen13. Every person who -
(a) indecently assaults any person under
the age of fourteen years;
(b) induces or permits any person under
that age to do any indecent act with or upon the first mentioned
person, is guilty of an offence and is liable on conviction
to imprisonment for a term not exceeding [ten] years.
Indecent assault on person
14. Every person who -
(a) indecently assaults any other person who is fourteen years
of age or more; or
(b) does anything to any other person who is fourteen years
or more with the consent of that other person which, but for
such consent would have been indecent assault, such consent
being obtained by a false or fraudulent representation as
to the nature and quality of the act, is guilty of an offence
and is liable on conviction to imprisonment for a term not
exceeding [seven] years.
Gross indecency15. (1) Every person who commits an act of gross indecency with
another person is guilty of an offence and is liable on conviction to imprisonment
for a term not exceeding [five] years.
(2) Subsection (1) does not apply
to an act of gross indecency committed in private between
-
(a) a husband and wife;
(b) between an adult male person and an adult
female person, both of whom consent to the commission
of the act.
(3) For the purposes of subsection
(2) -
(a) an act shall be deemed not to have been committed
in private if it is committed in a public place,
or if more than two persons take part or are present;
and
(b) a person shall be deemed not to consent to
the commission if such an act -
(i) if the consent is extorted by force,
threats or fear of bodily harm or is obtained
by false and fraudulent representations
as to the nature and quality of the act;
or
(ii) the consent is induced by the application
or administration of any drug, matter or
thing with intent to intoxicate or stupefy
the person;
(iii) if that person is, and the other party
to the act knows or has good reason to believe
that the person is mentally incapacitated
or insane.
(4) In this section "gross indecency"
is an act other than sexual intercourse (whether natural
or unnatural) by a person involving the use of genital
organ for the purpose of gratifying sexual desire.
Indecency between woman and girl16. (1) Every adult woman who -
(a) does any indecent act with or upon any girl under the
age of sixteen years; or
(b) induces or permits any girl under the age of sixteen years
to commit any indecent act with or upon such adult woman, is
guilty of an offence and is liable on conviction to imprisonment
for a term not exceeding [five] years.
(2) The girl shall not be charged as a party to
any offence under this section.
(3) It is no defence to a charge under this section
that the girl consented.
Sodomy
17. (1) Every male person who commits sodomy on a
female person is guilty of an offence and is liable on conviction to
imprisonment for a term not exceeding [ten] years.
(2) The act
of sodomy is complete upon penetration.
(3) It is no defence to a charge under this
section that the female person consented.
PART III - PROCURING ABDUCTION,
ETC.
18. (1) Any person who -
(a) procures or induces a minor to have sexual
intercourse with any person in [ ] or elsewhere;
or
(b) conspires with any other person to effect
the procurement of a minor as aforesaid, is guilty
of an offence and is liable on conviction -
(i) if the minor is under
the age of fourteen years, to imprisonment
for a term not exceeding [ten] years; or
(ii) if the minor is fourteen
years or more to imprisonment for a term
not exceeding [five] years.
Procuring19. Any person who -
(a) by threats or intimidation procures
another person to have sexual intercourse
with any person in [ ] or elsewhere;
(b) by deception procures another person
to have sexual intercourse with any person
in [ ] or elsewhere; or
(c) applies, administers to or causes to
be taken by any person any drug, matter
or thing with intent to stupefy or overpower
that person in order to enable any other
person to have sexual intercourse with that person, is guilty of an offence and is liable
in conviction to imprisonment for [fifteen]
years.
Abduction
20. (1) Any
person who, with intent to commit or abet the commission of an offence under this
Act -
(a) detains another person against that
other person's will in or upon any premises
or in any brothel;
(b) takes or causes any other person to
be taken away against that other person's
will,is guilty of an offence and is liable
on conviction to imprisonment for a term
not exceeding [ ] years.
(2) A Justice who is satisfied
upon oath that there is reasonable ground for
believing that a person is unlawfully detained
in any place for immoral purposes, may issue a
warrant authorising any constable or other person
named in the warrant to enter (if need be by force)
and search any place specified in the warrant
and to remove any person so detained and apprehend
any person accused of unlawful detention.
PART IV - GENERAL
Hearings in camera
21. (1) This section applies to the following
offences -
(a) rape;
(b) unlawful sexual connection;
(c) incest;
(d) sexual intercourse with person under fourteen;
(e) sexual intercourse with adopted minor, etc.;
(f) indecency with person under fourteen;
(g) indecent assault;
(h) gross indecency;
(i) sodomy.
(2) At any proceedings in relation to
an offence to which this section applies, the public shall,
be excluded during the hearing but the Judge may permit
the presence of any person whose presence is requested
by the complainant or the accused.
(3) The passing of sentence in relation
to any offence to which this section applies shall take
place in public.
Court may divest parent or
guardian
22.
If at the trial for an offence under section 18 (which relates to the procuration
of a minor) the parent or guardian of a minor is convicted of the offence the
court may divest the person convicted of all authority over the minor or to be
the guardian of the minor until the minor becomes an adult and the court may,
from time to time, vary or rescind the order.
Evidence concerning sexual activity
23.
In proceedings in respect of an offence under this Act, no evidence shall be adduced
by or on behalf of the accused concerning the sexual activity of the complainant.
Recent complaint
24.
The common law rules relating to recent complaint in complaint. sexual offence
cases are hereby abolished.
Court may forbid publication of report
25. (1) Where in a case involving rape, unlawful sexual connection,
indecent assault or sodomy the court is of the opinion that the interests of the
complainant so require, it may make an order forbidding publication of any report
or account giving details of the criminal acts alleged to have been performed
on the complainant or of any acts that the complainant is alleged to have been
compelled or induced to perform or to consent to or acquiesce in.
(2) The breach of an order made under
subsection (1) or any evasion or attempted
evasion of it, may be dealt with as
contempt of court.
Anonymity of complainant and accused
26. (1) After a person is charged with an offence under this
Act, no matter which is likely to lead members of the public to identify a person
as the complainant or as the accused in relation to that charge shall either be
published in a written publication or be broadcast in [ ] except -
(a)
where, on the application of the complainant or
the accused, the court directs that the effect
of the restriction is to impose a substantial
and unreasonable restriction on the reporting
of proceedings and that it is in the public interest
to remove the restriction in respect of the applicant;
or
(b) in the case of the accused,
after the person has been tried and convicted
of the offence.
(2) A person who publishes or broadcasts
any matter in contravention of subsection (1) is guilty
of an offence and is liable on conviction to a fine not
exceeding [fifty thousand] dollars or to imprisonment
for a term not exceeding [three] years.
(3) The person referred to in subsection
(2) is -
(a) in the case
of a publication in a newspaper or periodical, any
proprietor, editor or publisher of such newspaper
or periodical;
(b) in the case of any other publication, the person
who published;
(c) in the case of a broadcast
by a body corporate which transmits or provides
the programme in which the broadcast is made, the
person having functions in relation to the programme
corresponding to those of an editor of a newspaper.
(4) In subsection (1) -
"accused" means -
(a) a person
named in an information alleging that the person
has committed the offence;
(b) a person
who appears before the court charged
with the offence.
"complainant" in relation to a person
accused of an offence includes the person against whom
the offence is alleged to have been committed.
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