Introduction
The new Sexual Offences Bill is now a hot topic of debate after it was unveil by the Ministry of Social Welfare, Gender and Children’s Affairs during the 2008 16 Days of Activism Campaign, which is held every year between November 25 and December 10. The 16 days of activitism is hosted to draw attention to the violence suffered by women and girls and to demand an end to abuse. This is as result of the fact that the incidence of cases reported on sexual assault is on the increase and if stringent laws are not put in place to tackle this menace, the impact will be disastrous. There are reported cases of rape almost on a daily basis with children as young as 1 year old being abused. In a report issued by the International Rescue Committee, it stated that over 1,000 reported cases of sexual assault were reported in 2007. 896 of the victims sought legal action against their attackers. By the end of the year, only 13 perpetrators were successfully convicted and their sentences range between 8 months7 years. Among these cases were 149 gang rape and 108 became pregnant as a result. In 2008, a total of 1,275 cases were recorded and 25 cases were successfully convicted with perpetrators being sentenced between 18 months and 7 years.
The lack of adequate laws in dealing with sexual violence has tremendously contributed to the exacerbation of this act. Most of the cases of sexual violence are not taken to court. Even those that go to court are either withdrawn for settlement at home, thrown out of court for lack of evidence or just die naturally. Consequently, human rights advocates have started intensifying the campaign for the sexual offences bill to be treated with the utmost seriousness it deserves and passed into law so that it can effect changes on the prosecution of such cases in court. This article will therefore discuss the new sexual offences bill with particular reference to the major changes introduced, make suggestions and proffer recommendations.
Harmonizing the Definition of Child
One of the notable changes this bill introduces is the definition of a child. Under the current laws governing sexual offences, a child is refer to as somebody below the age of 14 years which stands in contrast with definition of child under the Child Rights Act and the Gender Justice Laws of 2007, both of which put forward the age of a child as any person below 18. At present, any person below the age of 14 who is sexually molested will have the case tried under the Prevention of Cruelty to Children Act and above 14 is tried under the Offences Against the Persons Act of 1861. The new provision will harmonise these laws when passed into law.
Punishment of Rape Cases
The new sexual offences bill also makes changes in the punishment of rape cases. Under the current law, the offence of rape is tried under The Offences Against The Persons Act of 1861 and the punishment if convicted is life imprisonment but people convicted under this act hardly face such punishment. Section 2(1) of the current Bill now makes provision for rapists to be sentenced to a maximum imprisonment not exceeding 25 years.
Criminalization of Incest
A very important provision this bill introduces is the criminalisation of incest. There have been a number of reported cases in which father rapes daughter, step daughter, brother rapes sister and they have just been charged for rape. In order to curb this menace, section 14(1) states that “any male person who engages in or attempts to engage in a sexual intercourse with a woman whom he knows to be his sister, half-sister, mother, daughter, or cousin commits an offence and shall be liable on conviction to imprisonment for life.”, irrespective of whether the relation cannot be traced through lawful wedlock. Section 15 of same also criminalises incest by women. However, the same transfers the burden of proof solely on the defendant though marriage can be a defence.
Defining Child Prostitution
Section 27 of the Bill makes it a crime for anybody who causes, incites, controls, arranges or facilitates child prostitution. Under the current Prevention of Cruelty Act, a child is protected to the extent that she is not common prostitute or of unknown moral character. This type of provision is discriminatory in itself by limiting the protection of the child to only those with good moral character. A child should always be protected under the law for acts such as prostitution-, she is the victim and those facilitating the practice, should be punished instead. The current Bill has made an amendment by providing full protection to the child even if she is a prostitute and criminalizing the activities of those using or facilitating child prostitution.
Other Protections
Other provisions which gear towards protecting children from being sexually abused run through section 6 and 13. For instance, engagement in sexual activity in child’s presence, causing a child to watch sexual activity, meeting a child for sexual purposes, sexual abuse by person in position of trust, causing a child to watch sexual activity by person in position of trust and sexual activity with the child’s family members. These provisions are very important in protecting the rights of children from sexual abuse as majority of such cases brought to court involve children between the ages of 0-15 years.
Protection for Mentally Retarded
Also, mentally retarded people are protected under this Bill whether on the street or in care institutions. The practice of sexually abusing mentally retarded people on the street is rampant in most communities. There was a case in court in which a lady was sexually assaulted by a man and the matter was taken to court. As the lady was testifying, the accused in the dock was laughing whispering that she is not normal and this make the magistrate to refuse him bail as he was not treating the matter with the seriousness it deserves. Under the current Bill therefore, it is a crime for individuals to sexually abuse people with mental problem.
Sexual Voyeurism
Also, section 23(1) criminalises voyeurism which states that, “Any person who for the purpose of obtaining sexual gratification observes another person doing a private act and he knows that the other person does not consent to being so observed”.
Sex with Animals
Section 24 makes provision for anyone caught having sex with an animal to be prosecuted and if convicted be sent to prison for a period not exceeding 5 years.
What is Missing in the Proposed Bill?
It is however important to note that there are certain sections in the proposed Bill in which the relevant offences are missing. For instance, in section 19,which made provision for indecent photographs of persons including children fails to expressly provide for the offence under same. Similarly under section 50-51 which prohibits trafficking within Sierra Leone for sexual exploitation, the Bill does not provide for the offence. Furthermore, sections 57 and 58 relating to committing an offence with intent to commit a sexual offence also do not provide the offence. The SLCMP is calling the attention of the drafters to the omissions highlighted above to be included before taking the Bill to Parliament.
Another important clause that is missing in the draft Bill is a provision criminalizing the actions of persons attempting to withdraw sexual offences cases from court for settlement at home. The draft Bill should include a provision to prosecute persons for perverting the course of justice. Parents or guardians often received money from perpetrators and withdraw cases without taking into account the impact such assault will have on the child. At times they will even asked the perpetrator to marry the victim. There is a case in court in which a very young girl was sexually abused by a full grown man and when the matter was sent to court, he went to victim’s mother and gave her the sum of 500,000 Leones (US$162) for the case to be withdrawn, which she did. The perpetrator then went about bragging. Due to the shame brought upon the mother as a result of the bragging, she had to return the money and resorted to recommencing prosecution against the man. As at the time of going to press, the case is still in court. By prohibiting withdrawal of cases of sexual offences from court will help to discourage such practice.
Lastly, the draft Bill also failed to clearly define the age of consent of the child. There is already a controversy in defining the age of consent under the current laws. In order to resolve this controversy, it is important that the draft Bill expressly define the age of consent of the child. As a child is not expected to make wise decision, the age of consent should be put at 18.
Conclusion
The above analysis on the major provisions enshrined in the Sexual Offences Bill is seen as a major step towards discouraging the practice of sexual assault and abuse in the country SLCMP is therefore urging the authorities to pass into law the new Sexual Offences Bill as quickly as possible.