Davion Vassell | No defence for old men

One look at the backlog of cases before the courts and, immediately, 'having sex with a person under age 16', an offence under Section 10 of the Sexual Offences Act, jumps out at you.

Markedly, any sexual act of this nature is commonly considered 'statutory rape', since a person under age 16 is unable to consent under law.

What drives me to comment on such a sensitive topic is this: While important, the law might be making criminals of the innocent.

Before the pitchforks and torches come out, let me reiterate my support of Section 10's relevance and importance. We all agree that it seeks to prevent older men from preying on the young, unsuspecting and oftentimes naive girls in our society. However - and this is the rub - that does not make it a perfect law.

Indeed, no law is perfect. But when examined, within context, the seriousness and detrimental flaws of this law, in particular, become apparent.

To the matter at hand - the said act in Section 10 (3) provides a defence commonly referred to as the 'young man's defence' by lawyers. It is instructive to note that the section outlines: If a person (1) 23 years or younger, (2) charged for the first time (emphasis added), (3) shows that he/she had reasonable cause to believe that the person was 16 years or older, such a person has a complete defence.

A complete defence is likely to exonerate a young man once successfully raised in court. However, here's the catch: On a man's 24th birthday, this defence evaporates for all eternity. Such an individual would have to face the full brunt of the law.

Besides the telling name given to the defence - young man's defence - the law is supposed to be equally applicable to women offenders as well; and yet, it's men who are before the courts almost exclusively.

Now, either we must admit that our young men are seriously perverted, or that the law isn't discriminately applied. So even if a young girl, more voluptuous than her mother, laced with tattoos and piercings, tells a man, 24 years or older, that she is over 16 - he never sees her in her uniform and believes her - once they have sex, or if he attempts to have sex (also covered in the section), his proverbial goose is cooked.

Doesn't it strike the mind as unfair, per my example above, that all reasonable belief is forever stripped from a man simply because he has turned 24? And yet the worst part is this: Even if she admits that she tricked him, he is still without the defence.

FOOL'S PREROGATIVE

Once convicted, he faces the possibility of up to 15 years in prison. And, notably, pleading guilty under such circumstances is a fool's prerogative, thus the backlog grows - not only with men who have knowingly and despicably been predatory, but with men also who've fallen victim twice, some of them, once to a girl who might have lied about her age and then by the misfortune of having a recent birthday that made them one year older or more than 23 years old.

By all means, it appears that the society has ascribed infallibility to a man 24 years and or older on this issue. In law, in fact, being just a day older could mean the end of a young man's life in so many ways. Now, is that fair? You tell me. You decide. But aren't our laws supposed to provide justice and equity to all?

Our society seems to have an expiry date on reasonableness: Once over 23, a man must have unquestionable omniscience, certainly as it relates to age. Or he must err on the side of caution and pray no mistakes.

Trek carefully, as here in Jamaica, there is no defence of old men.

- Davion Vassell is an attorney-at-law. Email feedback to columns@gleanerjm.com and davion.vassell@gmail.com