Khan case spurs calls to raise age of consent
-government willing but process laborious
June 6, 2004
The shock surrounding the sexual relationship of businessman, Reeaz Khan and the 13-year-old child may at last result in the government raising the minimum age for sexual consent, a move almost ten years overdue.
Minister of Human Services, Bibi Shadick says her ministry is still working on an amendment to the legislation, two years after she announced the government's intention to do so.
Shadick told Stabroek News the ministry held consultations to solicit the views of various communities. But she says objections were raised, specifically in Amerindian communities where early nuptials are still the norm.
Shadick would ideally like to raise the age to 18, when the child legally becomes an adult.
Law dates back to 1893
As it now stands, the age for sexual consent in Guyana is 13 under the Criminal Law Offences Act (CLOA) Chapter 8:09, which is described as archaic by its critics who say the law makes young girls more vulnerable to sexual abuse.
Section 69 (1) says everyone who unlawfully and carnally knows any girl of or above the age of 12 and under the age of 13 shall be guilty of a misdemeanour and would be liable to five years imprisonment. That is unless, Section 69 (2) says, the accused can prove that he had reasonable cause to believe that the girl was of or above the age of 13.
Section 70 says everyone who unlawfully and carnally knows any girl under the age of 12, whether or not he believes her to be of or above the age, shall be guilty of a felony and liable to life imprisonment.
Attorney Anil Nandlall points out from a purely legal perspective that the legislation was specifically enacted to facilitate marriages between indentured servants, who, according to custom, married at a very young age.
"Therefore, the raison d'etre for the enactment no longer exists; the exigencies which it was designed to meet or the mischief which it was intended to cure is no longer extant. The enactment has clearly outlived its usefulness..."
He believes the law should be amended to raise the minimum age to 16, which he says is the current position in England and most countries in the world.
Also, Chapter 8:01 was enacted in 1893 and Nandlall thinks this sufficient reason to reform and modernise the archaic legislation to bring it in conformity with society's modern values.
Dealing with wayward children is tricky
However, Shadick doubts that changing the law would solve the problem, since abuses occur in spite of the law. Also, she notes that while laws might be in place, the police will not act unless they are informed of them.
She is exploring options to amend the law, and she is even considering additional provisions to protect children from parents who would try to exploit them.
"I want something [that] we can [use] to prosecute those persons who knowingly allow children to be exploited in that way..."
Another option that is being considered is punishment for juveniles who may be beyond parental control. Though Shadick says she is reluctant to criminalise children she thinks there may be need for provisions to institutionalise such children.
Conditions for the period between the age of consent and when the child legally becomes an adult are also being considered.
Shadick says she is also trying to expedite work on two important pieces of legislation that are yet to be enacted - the Status of the Child Bill and the Children's Bill, both only drafts.
Both bills were drafted before the minister assumed office in 2001. Since then discussions have been held with more than ninety individuals and organisations for their input on the bills, which have since been the subject of a review by legal experts.
Shadick admits that work at this latter stage has taken a long time, which is one of the reasons why other steps are being taken to change the law, including the proposed amendments for the minimum age for sexual consent.
It is for this reason that she has met with those responsible to expedite the review, which will now be divided among several legal experts.
The United Nations Children's Fund (UNICEF), which funded the draft, is now funding the review.
Legal review taking too long
In 1995 the Family Maintenance and Related Matters Committee, chaired by then Justice Desiree Bernard, in its report recommended that Section 69 be repealed and Section 70 amended to stipulate that the age of consent be set at fourteen. But the implementation of the committee's recommendations has been piecemeal, according to Valerie Stephenson, who co-ordinates UN programmes for the Human Services Ministry.
Stephenson confirms that the minister has been making very strong recommendations for increasing the age of consent, which she says has been responsible for the dismissal of many rape cases.
In January, the United Nations Committee on the Rights of the Child held its 35th session in Geneva recommended that Guyana raise the minimum age for sexual consent to an internationally-accepted standard.
In the government's report to the UN Committee, which has still not been made publicly available, the need for constant review and modernising of the legislation were among the key recommendations. But there was no direct proposal for raising the age of consent.
Current laws contradict abstinence message
Meanwhile, local child rights advocates agreed that the current age of consent is unacceptable in its NGO Report to the UN Committee.
The groups felt it was also alarming given the high incidence of HIV/AIDS infections and teenage pregnancies in Guyana. In this vein, they noted too that it contradicts the messages of abstinence and sexual responsibility being promoted by governmental and non-governmental agencies.
The report also concludes that the vulnerability of the girl child is increased by Section 69 (2).
"This provision means that a girl child can be denied the right to a straightforward prosecution for statutory rape by virtue of appearance," it says.
"The legal argument that the accused thought the girl to be older is the most frequently used by offenders as a defence against statutory rape or carnal knowledge of a child between 12 and 13 years."
Emphasis on stopping adult exploitation
"We allowed ourselves to be trapped in a lawyer's dilemma," explains Karen de Souza of Red Thread, one of the groups which worked on the report.
de Souza says the groups were disinclined to recommend a specific age because they were advised that the law would not set apart sex between an adult and a child and sex between two children. Thus, children who have sex below the age of consent would be guilty of statutory rape. For example, if the age of consent were set at 16, a 15-year-old boy would be guilty of statutory rape if he has consensual sex with a 15-year-old-girl because she is legally incapable of giving consent.
"The male would then be liable even if the sex was consensual. So we would be setting up a situation where we would be criminalising children... that is the dilemma that prevented us from making any straightforward recommendation on the matter," de Souza admits.
"The law is supposed to serve us. The law can find a way to make a difference between an adult seducing a child and two children having consensual sex."
de Souza, like the minister, believes 18 to be the ideal age but says 16 is realistic.
She is convinced that there have been many situations very similar to the Reeaz Khan case, but she says none has been brought to the public's attention in similar fashion.
"While it is not exactly excusable that we have not put up a fight to get it sorted out and legislated when the issue was not public, now that it is public we would be criminal not to take steps to deal with it," de Souza says, when asked about NGO efforts prior to this case.
Meanwhile, in a statement that was issued on Monday the Guyana Human Rights Association (GHRA) said that the Reeaz Khan case highlights the complete vulnerability of girl children to sexual abuse.
The GHRA said there is confusion surrounding the age of consent because most people think the Bernard Committee's recommendation was implemented.
GHRA to hold meeting on subject
The issues are to be examined at a meeting that will be held at the Guyana Human Rights Centre on Tuesday. The GHRA also says that a range of tighter protections against paedophilia is required and a strategy for medium-term solutions will be addressed at the meeting as well as the Children's Bill. The rights body said having languished for almost a decade at the ministerial level, the project needs a new lease on life and it proposes that any further work on the bill ought to take place within the context of a Select Parlia-mentary Committee.
Since the Khan case surfaced, several other groups have also urged that the minimum age of consent be raised. First Lady Varshnie Jagdeo who chairs the National Commission on the Rights of the Child also favours raising the age of consent.