CHILD ABUSE REPORT: A victim’s ‘consent’ — should it matter?

Does consent matter?

In 2003, Magistrate Archie Warner sentenced a 21-year-old man to six years in jail for sexual offences involving a 13-year-old girl. The man also had previous convictions for similar offences.

Instructing the jury in Supreme Court, Mr Warner said: “It did not matter whether the girl consented to having the sex with the man, it doesn’t matter whether you think she liked it or did it before. If it is your opinion that she had sexual intercourse with him, then you must find him guilty.”

Last week, however, when passing sentence on a 22-year-old man for having sex with a 14-year-old girl, Mr Warner said there were “special circumstances” — including the “willing and eager participation of the victim”.

Admittedly, this example does not compare like with like as the former is about guilt or innocence and the latter about sentencing (which is guided by precedent), but it does raise the raise questions about the relevance of consent in these cases.

And it seems clear from our notional research that sentencing in child sex abuse cases varies and also, that offences against young boys appear to be treated more harshly than offences against under-age girls.

 Mr Warner declined to comment and deferred to his boss, Chief Justice Ian Kawaley (see main story on this page.)

A 42-year-old man was sentenced by then-Assistant Justice Mr Warner in 2002 to a total of ten years in jail for sex offences involving a boy who was aged between 13 and 14 at the time. The sentence was later reduced on appeal to four years.

And last year, a 47-year-old man was jailed for ten years at Supreme Court after he admitted sexually abusing a 10-year-old boy and possessing thousands of child pornography images.

Predators

“There is an overall tendency ... to give considerably longer sentences to predators that offend against boys than those who offend against girls,” says children’s right campaigner Sheelagh Cooper said.

Last year, Magistrate Khamisi Tokunbo came under fire after he gave a suspended sentence to a former trainee firefighter convicted of sexually exploiting a 12-year-old girl. An online petition called for him to be removed from the Bench after the man, then 22, was sentenced to a 15-month sentence, suspended for two years.

Mr Tokunbo told the man that it was “a serious offence” and that young girls had to be protected from men “who would prey on them.” But he added: “I think it was a learning experience for you. By all indications, you were otherwise a decent young man. I don’t think you preyed on her or pursued her as such. You were old enough to understand she was off limits.”

Ms Cooper talks of a “bias” that “stems from the belief that these young girls are in some way responsible for their own victimization.

“This is evidenced by comments like ‘she was a willing and eager participant’ referring to a 14-year-old girl. You will never hear a statement like that made in reference to the violation of a 14-year-old boy.

“A statement like that comes from a set of badly distorted assumptions about where the real onus of responsibility lies and the mistake in law that grants the right of compliance to a child to engage in this kind of sexual behaviour.”

Ms Cooper welcomes the announcement by the island’s top judge, Chief Justice Ian Kawaley, that new sentencing guidelines in child sex abuse cases are to be drawn up, with input from children’s charities (see main story).

She said: “We are very pleased indeed to see that the Chief Justice is pursuing this and is developing badly needed sentencing guidelines.”

And Ms Cooper said she and her charity, the Coalition for the Protection of Children, would be monitoring sentencing in future child sex abuse cases.