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Consent, children and related offences
Student, Hugh Wooding Law School
With the proclamation of the Children’s Act No 12 of 2012 (“the Act”) on 18th May 2015, several changes followed. A “child” is now defined as “a person under the age of 18 years.” Before the proclamation of the Act, a child was defined as a person under the age of 16 years and the Sexual Offences Act Chap 11:28 listed various offences for engaging in activities with persons under 16 years of age.
However, under the new legislation, certain sections of the Sexual Offences Act have been repealed, widening the parameters under which persons can be charged.
The Act puts into effect certain obligations which are listed in the Convention on the Rights of the Child, to which T&T is a party. In other words, the Act is putting into effect what the country agreed to in this Convention to bring the country up to international standards.
Not only did the Act repeal offences but it created new ones:
• Female Genital Mutilation—According to section 9, female genital mutilation, the practice of partially or totally removing the external genitalia of girls, is now an offence and any person found guilty on summary conviction is liable to a fine of fifty thousand dollars ($50,000) and to imprisonment for 10 years.
• Sexual Penetration of a Child—Additionally an offence known as sexual penetration of a child has been created. The Act states that penetration of a child includes:
(a) the insertion of any body part or any object into a child’s bodily orifice; or
(b) the insertion of a part of a child’s body into a person’s bodily orifice.
The Act defines bodily orifice as anus, vagina, urethra, mouth, ear or nostril, and this applies to children of both sexes. According to section 18, a person who sexually penetrates a child commits an offence and is liable on conviction on indictment to imprisonment for life.
• Sexual touching—Further, the Act states that it is an offence to sexually touch any child under the age of 16. Touching or any other activity is defined in section 3 of the Act. Anyone who sexually touches a child under 16 is liable, upon summary conviction, to a fine of fifty thousand dollars ($50,000.00) and to imprisonment for 10 years or (b) on conviction on indictment to imprisonment for 20 years.
As with all laws, there are exceptions. Under section 20 of the Act there is provision for the decriminalisation of sexual activity between children. In other words, the Act makes provision for the inevitable experimentation that occurs between children.
The scope of these exceptions is very limited. The exceptions only apply to certain age groups and are dependent upon certain other conditions.
Moreover, the Act, under sections 26, 27 and 28, makes provision for children who are lawfully married. Under the Hindu Marriage Act Chap 45:03 and the Muslim Marriage and Divorce Act Chapter 45:02, children as young as 14 and 12 years respectively, may be lawfully married under religious rights.
The sections of the Act provide that conduct by a person in relation to a child that would otherwise constitute an offence against a child would not be considered an offence once they are lawfully married to each other, in addition to other considerations.
• This column is not legal advice. If you have a legal problem, you should consult a legal adviser. Co-ordinator: Roshan Ramcharitar