Sex with underage unlawful, even with consent: Court

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BY JENNIFER KUSAPA

CHIEF Justice Sir Albert Palmer has reiterated that sex with an under-age girl is against the law.

Sir Albert, in sentencing an accused who entered a guilty plea on the charge of sexual intercourse with a child under 18 years, said sex with an underage girl, even if there is consent, is against the law.

“When imposing sentence on such cases, the court must consider the element of deterrence in this type of case as it becoming all so common in the communities and the importance of sending out a clear message to the community that those who commit this type of offence will expect to be sent to prison, the length of time to be determined on the merits of each case.

“Men need to know and be reminded that having sex with an underage girl, even if there is consent, is against the law, frowned against by the community and those standards need to be maintained and respected. 

“The creation of this offence and maximum sentence of imprisonment reflects the level of seriousness and concern with which Parliament views this type of offence in the community and the need to protect young girls from other men and themselves. 

“Young girls often fall victim to the uncontrolled urges of men to satisfy themselves at the expense of the victim, their dignity, families and future.  The consequences can be long lasting as has been alluded to by the victim in her Victim Impact Statement, through ongoing shame, fear and insecurity,” he said.

This is the case of a man who was charged with one count of sexual intercourse with a child under 18 years contrary to section 140 (1) (a) and (b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016.

“This is a new provision introduced under the Penal Code (Amendment) (Sexual Offences) Act 2016, in June 2016, to criminalize sexual intercourse with a girl below the age of 18 years.  The victim in this case was 17 years of age at the time of commission,” the Chief Justice said.

He said the accused is the adopted uncle of the victim and thus placed in a position of trust or responsibility. 

Palmer said noted from the submissions the victim is not a regular in his home and so not being familiar with her, but that does not diminish his position of trust and responsibility towards the victim.  The fact he is also married accentuates that position of trust and accountability to the victim, himself, his family and the community.

The brief facts in this case did not indicate that the incident was pre-arranged and that sexual intercourse was consensual. 

Palmer said defence lawyer’s submissions in mitigation submitted, that sexual intercourse was consensual. 

“While that has not been disputed, consent is not a defence in this offence.  I keep that in mind however in relation to the sentence to be considered.

“Therefore, taking all the aggravating factors in this case into account, the court impose five years, but then considering the accused early guilty plea and the mitigating factors submitted by his lawyer, three years has been deducted and a total of two years will be served by the accuse in jail.

“Also, a period of eleven months 25 days will also be further deducted from the total sentence.”


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