Features — 17 January 2018
Dodging the “BULLET” is no joke

Capacity of the victim

Now let’s get some facts straight! The minor is sixteen, per police, and as such he is able to consent to sexual intercourse, because our law says you are an adult until eighteen years but can consent to sexual intercourse from age sixteen … yeah, I know people will debate this, but for now this is the law. Thus, the key here is whether this boy consented or NOT to being sexually touched, assaulted or had, or that he was capable of giving free and informed consent, or if he had the capacity to give consent.

However, if it’s true the child is suffering from some mental challenge and it can be proven at court by some doctor or psychiatrist, then the issue of consent is moot, as there is no way he could have given consent. But if we understand Bullet’s defence, consent is not an issue, since he is not saying that he was going to ravish the boy, but rather the boy was following and stalking him, to put it in my words.

Under the amendment of the Criminal Code there was a new section added which is Section 45A, which makes it an offence where the accused “intentionally touches another person, that touching being sexual in nature, without that person’s consent, or a reasonable belief that that person consents …”  The touching may be of the person’s vagina, penis, anus, breast or any other part of the person’s body and thus where the victim is sixteen and over, then on summary conviction (at Magistrate’s Court) the penalty is five years imprisonment, and on indictment (at Supreme Court) it is ten years imprisonment.

But when the person is sixteen but mentally challenged, there is a special provision in the law now at Section 47E, which reads as follows:

“47A(1) Every person who, intentionally touches another person and that touching is sexual  in nature, knows or could reasonably be expected to know that the other person is mentally defective or has an unsound mind and that-
(a) because of it that person is unable to refuse because he lacks the capacity to choose whether to agree to the touching either due to lack of understanding of the nature or reasonably foreseeable consequences of what is being done or for any other reason or
(b) that person is unable to communicate such choice to the person who is touching him,
commits an offence and is liable, on conviction on indictment, to imprisonment for life.”

Now, the problem for the prosecution is where the person is mentally challenged, depending on the level of said challenge, but the person may just be “slow” or, as we would say, “simple” minded, thus could explain what happened even if not appreciating the magnitude of it. Thus, the evidence of the police, who intervened with their knocking at the door, is critical, and even the evidence of those who raised the alarm is essential. We can now sit back and wait to see what is the evidence the prosecution will be able to marshal to present against this accused. In the meantime, I pray that our population would learn to be more sensitive about what a victim of abuse must live with, and stop judging, because those abused just do not see or think like you do, due to the trauma the abuse causes on the mind and body! Let’s just stop the jokes and be more sensible and sensitive!

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Deshawn Swasey

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