Stephen Vasciannie

Last Thursday, two public officials advanced somewhat divergent positions on the question of the age of consent for sex in Jamaica. Major Richard Reese, the commissioner of corrections, suggested to a Joint Select Com-mittee of Parliament that the age of consent should be raised from 16 to 18. In contrast, Mary Clarke, the Children's Advocate, argued that an increase in the age of consent would be unacceptable. The Gleaner report on this issue, by Earl Moxam, helpfully reminds us that the age of consent was moved from 14 to 16 in the 1980s.

Should the age of consent for sex be 16 or 18 in Jamaica? To some extent, this is a question of subjective judgment. The idea of an age of consent is prompted by the obvious fact that when children have sex, they may not be emotionally prepared for the consequences of sexual involvement - a point that influenced Major Reese's analysis. Most children, too, will be unprepared for the psychological and financial consequences of childbearing and child-raising.

But these considerations, though of the highest importance, do not tell us precisely when one crosses the threshold into adulthood. And, clearly, some persons at 16 are more mature than their 18-year-old counterparts, so that if the issue concerns readiness for the adult activity of sex, it may be difficult to draw a preordained line at 16 or 18 for all persons.

Circumstances

One of the problems with stating a single age of consent is that the rule may be insensitive to the cir-cumstances in which persons actually have sex. For example, if we accept that the age should be 18, then, what are we to do when faced with a situation in which two 16-year-olds, responding to biological impulses yet unmastered, are found to have indulged? Should these youngsters adults be imprisoned for what the law regards as an error? This strikes me as unacceptably draconian.

But that situation is probably quite different from the one in which a 40-year-old, abusing a position of trust or authority, brings sex to a 16-year-old, who has not developed the self-confidence and self-esteem properly to reject unwanted advances. As a general proposition the law should seek to distinguish between the two situations. This may require two different approaches, a point not covered in the simple assertion that the age of consent should be X or Y.

Mistake

Other considerations may also be briefly mentioned. In some places, the law takes into account the possibility of an honest mistake. Section 50 of the Jamaican Offences against the Person Act may be mentioned here. Having established that it shall be a crime punishable for up to seven years for a man to have sex with a girl between the ages of 12 and 16, the provision indicates that if the man is 23 or under, and there was reasonable cause to believe that the girl was over 16, the man shall have a valid defence "on the first occasion on which he is charged with an offence under this section." One time is mistake É

My own position is that the law in Jamaica should retain the age of 16, in light of current realities; it is important to protect children, not to criminalize their behaviour (the main point made by the Children's Advocate). But it should be acknowledged that international practice is quite variable.