Sexual Offences

The September 2014 criminal assizes has recently commenced and we are told that there are 21 sexual offences listed to be heard. These sexual offences include incest, unlawful sexual intercourse, indecent assault, gross indecency, rape and buggery. It would appear that sexual offences have dominated many of the assizes in Dominica over the last few years and one wonders why this particular type of offence is so prevalent here.

As stated above incest is one of the sexual offences scheduled to be heard in this assizes. Incest is where sexual intercourse took place between a parent and child, grandparent and grandchild, brother and sister either of the whole blood or half blood, uncle and niece, aunt and nephew.
For the offence to be made out the prosecution has to prove that the person charged knew of theconsanguineous, meaning “of common blood” relationship which exists between that person and the victim. Consent is not a defence. So it is immaterial that you and the person agreed to do the sexual act. The only defence available to the person charged is that they were under duress, fear or restraint when the act was committed. If found guilty and the court has to impose a sentence, the age of the person charged is significant. If the person charged is a minor who has an incestuous relationship with another minor then the person charged is liable to be sentenced to a period of two years imprisonment. Where the person charged is an adult and the victim is under 14 years the sentence could be 25 years and if the victim is 14 years or more then liability is 10 years.

With regard to unlawful sexual intercourse, they come in different forms. There is unlawful sexual intercourse with a girl under the age of 14 years old and unlawful sexual intercourse with a girl between the ages of 14 and 16 years.
It is common knowledge that sexual intercourse is heterosexual intercourse involving the penetration of the vagina by the penis. Therefore it is unlawful when one of the parties does not consent or is incapable of consenting. A person is incapable of consenting if that person is under the age of 14 and is not the spouse of the person charged. Too often young men accused of dating school girls would comment that these school girls are their girlfriends and that the girls consented. In law there is no such defence and those young men run the risk of being sentenced to imprisonment for 25 years. These girls are what are referred to as jail bait.

Where the other person is between the ages of 14 and 16 however the law in relation to this offence slightly differs. Here if the person charged is not more than 21 years old, has not been previously convicted of an offence of a similar kind, and the other person consented then this is a valid and legal defence provided that the person charged must prove that they had been led to believe that the other person was over the age of 16 at the time of the sexual intercourse. If this defence fails then the person charged could be imprisoned for a period of 14 years.

Therefore there is no defence if the person charged simply says that they were led to believe that the other person was over 16 years old. They must meet all other requirements in relation to their age, no previous conviction of a similar kind etc.

Indecent assault

In R v Harkin, Lee J in the NSWCAA, with whom the others agreed, said the following:
“It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas… The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.”

Here a person can be found guilty if they commits of acts against another which consist of assault or battery accompanied by words or circumstances which clearly indicate an indecent intention. Therefore a person who touches another’s private parts and uses suggestive words / and or create an environment indicates indecency will be guilty of the offence and could be sentenced to a period of 10 years if the victim is under 14 years, between the ages of 14-16 years, sentenced to 7 years and if between adults 5 years imprisonment.

Gross Indecency

A person can be found guilty of gross indecency if that person commits a sexual act that does not involve touching another person such as exposing their private parts in public, having oral sex in public or  masturbating in public the effect of which leads to the arousal of sexual gratification. Where any of these acts are committed between adult males and females in private and with each other’s consent then it is not an offence. If done in public, it is an offence. Where the offence is committed the penalty to be imposed is 5 years imprisonment.

Rape

Here where a person has forcible sexual intercourse with another person during heterosexual intercourse where the penis penetrates the vagina without that other person’s consent the penalty to be imposed for so doing is 25 years imprisonment. There is stranger rape and date rape both of which attract the same penalties.

Buggery

Here a male person who uses his penis to penetrate the anus of another male person or the anus of a female person is guilty of an offence and is liable to be imprisonment for 25 years if committed on a minor, 10 years if committed on an adult and 5 years if the person accused is a minor.

Sexual offences are viewed very seriously by the legislators and this can be gleaned from the penalties to be imposed. There are very lengthy terms of imprisonment if found guilty therefor. It is unfortunate that this is the nature of the offence that dominates the assizes. Gone are the days when sexual offences were committed by strangers. Now they are committed by family members, close friends or whilst out on dates. Sexual offences against children where they are used as sex objects or are placed on videos or are encouraged to view sexual material by looking at DVDs are appalling and distressing. As you can see the sentences for sexual offences are lengthy to show disapproval and to act as a deterrent to others who have intentions to commit sexual offence s against them.

Further some young girls are engaging in sexual activities with older men for money and other favours. Sometimes these young girls are encouraged to have these relationships with older men by their mothers to assist with the expenses of the home.

Recently there was a clamour that there should be a sexual offender’s register in Dominica. Mrs. Delia Cuffy-Weekes stated it will make the population more aware of what they can do more to protect themselves.

“Sexual offenders come in all shapes and sizes and most of them have honed their skills, so they are not devils with little horns that make you afraid when you see them,” she said. “They are charming, they study their victims, they know how to get to them and sometimes, particularly women unwittingly allow these people to enter their homes and prey on their children. If people are aware of who these people are then they can do a lot more to protect their children and themselves,” (See Dominica news online dated Tuesday May 20^th2014).

So the September 2014 Criminal assizes has commenced. Let’s see how these matters unfold.