A servicemember of the Jamaica Constabulary Force (JCF) was charged on Monday (January 22) with five counts of sexual intercourse with a person younger than 16 and five counts of grievous sexual assault.

There is usually a very specific difference with how persons are charged when the victim is a minor and there can be confusion as to why it is usually not charged as rape.

The Sexual Offences Act defines rape in Section 3 as happening to a woman by a man whereas in Section 4, the offences are described as being done to a person by another person. Section 4(3) also specifies that if any of the acts that are described earlier in the section are done to a person under the age of 16, it will constitute a crime under thar specific section.

The language of the legislation is deliberate in both sections and therefore will always affect the way charges are laid against a person in relation to these types of crimes.

The law specifically deals with offences against persons under 16 years old in section 10. Section 10 specifies that if any of the acts described earlier in the legislation are done to a person under 16, it would be considered as a separate crime; sexual act with a person under 16.

There might be public discussions as to why the victim’s age makes the crime different but it clear from the language that the legislators wished for crimes perpetrated against children (in this legislation this refers to persons below the age of consent) to be dealt with as a separate category as children fall in a protected class.

These offences against children are considered strict liability offences. This means that there is no requirement to prove intent. There is no legal need for the Crown to prove that a person set out to have relations of any kind specifically with a minor. The fact that the person is a minor is enough to constitute the offense. In most other criminal charges, an important factor is intent as most crimes have a mental component, however, these kind of offences are an exception to that. A defense therefore cannot be lack of knowledge of the victim’s age, since knowing the victim’s age is not needed for the offence to be a crime.

These crimes are of course very sensitive to prosecute and there is a lot of public discussion of raising the age of consent so that more people can be charged, as well as changing the definition of rape to include other victims and other perpetrators.

So far, the demarcation is specific and only allows for certain situations to be treated as rape.