By Elesha George
For more than three years, two teenage boys waited while on bail to learn their fate, after they were accused of raping a schoolmate on March, 26th 2019.
The parties in this case cannot be named as a matter of legal prudence. But the two boys who were only 16 years old at the time, were charged with raping a 14-year-old girl who attended the same secondary school as them. The child was reportedly raped on the school farm.
The matter was first heard in the Child Justice Court which follows the processes to treat children accused of unlawful offences, but being a rape case, which is categorised as a serious indictable offence, it was ultimately forwarded to the High Court for trial in the May 2022 assizes.
Last week, a jury consisting of six women and three men, returned a not guilty verdict to High Court Judge, Justice Colin Williams who read it out to the now 19-year-olds.
The boys, through their lawyer Wendel Robinson, had maintained from the beginning that the sexual act was consensual – begging many to ask, how a 14-year-old can consent to sex under the same laws of Antigua and Barbuda which recognise the age of sexual consent at 16 years old.
Well, the answer is in the country’s Sexual Offences Act of 1995 which currently makes ambiguous provisions for the court to consider the age of the parties involved in rape cases.
Robinson explained that “Because the police charged them with rape, and because the indictment was that of rape, the age of consent was not a consideration for that offence, because there is nothing in the offence of rape that specifies that age is a requirement.”
Section 3(1) of the Sexual Offences Act lists rape as when: (1) A male person commits the offence of rape when he has sexual intercourse with a female person who is not his wife either – (a) without her consent where he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it; or (b) with her consent where the consent – (i) is extorted by threats or fear of bodily harm to her or to another; or (ii) is obtained by impersonating her husband; or (iii) is obtained by false and fraudulent representations as to the nature of the act.
Nothing else, Robinson noted, defines the act of rape and therefore his client’s case rested on the argument of whether the young girl consented to the act – an argument which the jury voted in favour of.
Had the boys been accused and charged with “sexual intercourse” under the act, rather than rape, the issue of age could be defended, but since it was proven that the sex was consensual, it still would not have been considered as statutory rape.
That is because Section 6(1) of the act makes provision for a female who is between the ages of 14 and 16 and does not list it as rape but as having “sexual intercourse” if the male perpetrator/s are no more than three years older than the victim.
“When the girl is between the age of 14 and 16, Section 6 of the Sexual Offences Act creates two defenses … if the girl is between 14 and 16, and she has consensual sexual intercourse with a boy who is not more than three years older than her, that boy will have a good defense if the boy can prove that between them, he is not wholly or substantially to blame,” he explained.
The law Robinson suggested seems to offer a defense for “a youth sexually active male” up to the age of 18, provided that he is not more than three years older than her, or if he can prove that she consented.
In part (2) of that section it states that “A male person is not guilty of an offence under subsection (1) – (a) if he honestly believed that the female person was sixteen years of age or more; or (b) if the male person is not more than three years older than the female person and the court is of the opinion that the evidence discloses that as between the male person and the female person, the male person is not wholly or substantially to blame.”
The attorney has described the Sexual Offences Act as being “very ripe for amendment,” insisting that those changes must include a review of the definition of rape and who can commit an act of rape in the modern century.
The government has previously committed to revieing the 1995 law, but so far no legal amendments have been passed.