The Sexual Offences Bill, 2015 and the Protection of Children, By Nonso Attoh Robert

Since the passage of the Sexual Offences Bill 2015 a few weeks ago, there has been great agitation from several quarters about the true import of the Bill. To many of the pundits and agitators, the Bill is anathema because of its anticipated provision criminalising sexual activity with a child aged eleven or less. In their opinion, such a provision officially sanctions eleven years as the approved age for sexual activity by children in Nigeria.

Unfortunately, this view seems not to be well founded in the light of the remaining provisions of the Bill and also the provisions of the Child Rights Act, which has been domesticated by majority of the states in Nigeria. It is important to state that going by the initial draft of the bill reproduced above, the senators never had any intention to reduce the age of consent for sexual activity to 11 years.

The Bill creates the offence of defilement as an act which causes penetration with a child and defines penetration to mean partial or complete insertion of the genital organs of a person into the genital organs of another person (Section 50 SOB 2013, Clause 45 of intended SOB 2015). It equally defines genital organ to include the whole part of a male or female genital organs, and includes the anus and breasts for the purposes of the Act (Section 50, Clause 45 of intended SOB 2015).

A child is defined as having the meaning assigned to the term in the Infant Relief Act (Section 50, Clause 45 of intended SOB 2015). The Infant Relief Act 1874 by inference provides that an infant is a person under the age of 21 years.

From the provisions of the original 2013 draft Bill, sexual activity with a child can be classified into three categories, viz; sexual activity with a child aged eleven or less (Section 7(2)); sexual activity with a child aged twelve to fifteen years (Section 7(3)); and sexual activity with a child between the ages of sixteen and eighteen years (Section 7(4).

It is no doubt the manner in which section 7 was drafted that created confusion in the minds of impatient and maybe overtly critical readers. One of the questions that would agitate the minds of a thoughtful reader of that section is the rationale for breaking down defilement of a child into three categories, if the same punishment attaches to the three categories. Why not just state categorically that defilement of a child attracts life imprisonment and then go ahead to define who a child is. But, as could be expected, the final provisions contained in clause 6 of the 2015 Bill corrects this inelegant draftsmanship and simply provides that “A person who commits an offence of defilement shall upon conviction be sentenced to imprisonment for life” (Clause 6(2) 2015 Bill).

Other provisions of the Bill directed towards safeguarding the child include: criminalisation of attempted defilement (Section 8 SOB 2013, Clause 7 of intended SOB 2015), criminalisation of indecent acts with a child (Section 10 SOB 2013, Clause 9 of intended SOB 2015), criminalisation of the promotion of sexual offences with a child (Section 11 SOB 2013, Clause 10 of intended SOB 2015), criminalisation of child trafficking for sexual purposes (Section 12 SOB 2013, not included in the 2015 Bill), criminalisation of child sex tourism (Section 13 SOB 2013, Clause 11 of intended SOB 2015), criminalisation of child prostitution (Section 14 SOB 2013, Clause 12 of intended SOB 2015), criminalisation of child pornography (Section 15 SOB 2013, Clause 13 of intended SOB 2015 (but note that the definition contained in Clause 13 is of pornography, though the headnote reads child pornography), and criminalisation of incest and attempted incest by male (Section 19 SOB 2013, Clause 17(1&2) of intended SOB 2015) and female persons (Section 20 SOB 2013, Clause 18 of intended SOB 2015) with children.

The Bill also, unlike the Child’s Rights Act, provides for a defence to the charge of defilement. Thus it is a defence to show that the child deceived the accused into believing that she was above the age of 18 years at the time the offence was committed and that the accused reasonably believed the child to be above the age of 18 years (Section 7(5) SOB 2013, Clause 6(3) of intended SOB 2015). The defence will however not avail an accused if he/she is within the prohibited degrees of blood affinity (Section 7(7) SOB 2013, Clause 6(5) of intended SOB 2015).

Under the Child’s Rights Act, it is immaterial that the offender believed the person to be of or above the age of 18 years or that the sexual intercourse was with the consent of the child (section 31(3) CRA 2003).

Another compelling provision for the interest of children’s right is the possibility of declaring a child witness as a vulnerable witness (Section 31(1)(b) SOB 2013, Clause 29(1)(b) of intended SOB 2015), and the protections that will follow such declaration (Section 31(4) SOB 2013, Clause 29(4) of intended SOB 2015). There is also a provision that designates a person who is convicted of a sexual offence against a child as a dangerous sex offender (Section 39(1)(c) SOB 2013, Clause 37(1)(c) of intended SOB 2015), who is subject to supervision and whose particulars and samples may be contained in the Dangerous Sex Offenders database (Section 36(3 and 4) SOB 2013, Clause 34(3 and 4) of intended SOB 2015).

It is also important to note that the Bill does not make any provisions for the cases where both persons involved in the sexual activity are both children or are close to each other in age, the situation commonly referred to as Romeo and Juliet clauses in the American jurisdiction. As such, a child who commits the offence of defilement on another child is also liable to life imprisonment, a situation that is contrary to international and national prescriptions on juvenile justice.

Thus examining the Bill holistically, it seems that its provisions relating to children are well intentioned and are directed towards protecting the child from exploitation. The controversial section 7 as originally drafted does not purport to change the age of consent for sexual activity to eleven years as has been touted in various quarters.

However, adopting the meaning given to an infant in the Infant Relief Act 1874 of 21 years seems to run counter to the intendment of the Bill. For example, it is a defence to the charge of defilement that the child deceived the accused into believing that he or she was over the age of 18 years at the time of the alleged offence and the accused person reasonably believed that the child was over the age of 18 years. (Section 7(5) SOB 2013, Clause 6(3) of intended SOB 2015). Also in relation to incest with a child, the stipulated age is 18 years (Clause 17(1) of intended SOB 2015). Thus it seems contradictory to adopt the meaning of infant as one below 21 years.

Despite these few drafting inelegancies one must duly acknowledge the good intentions of the sponsor of the bill to protect children by criminalising what is referred to as statutory rape in other jurisdiction. Even though the Child’s Rights Act had blazed the trail in creating this offence of statutory rape, the distinguished senator must have sought for a more binding law on the subject matter, as the Child’s Rights Act, because of its unfortunate defect in passage, can only be regarded as an Act applicable to the Federal Capital Territory.

Statutory rape is a term used to describe sexual relations involving someone who is under an age specified by statute and who cannot legally consent to having sex. The Child’s Rights Act calls it rape while the Sexual Offences Bill calls it defilement. Some other countries simply refer to it as sexual intercourse with a minor.

Statutory rape laws are based on the need to protect young people who are deemed incapable of giving informed consent to sex because of their lack of maturity and judgment. They are passed to protect the child who is considered innocent and trusting from pedophiles.

Statutory rape laws define the age of consent and any sexual activity with a child below the age of consent are criminalised. There is no general age considered as the age of consent, but each state decides for itself what the suitable age is. For example, in the United States, about 30 states fix 16 years as the age of consent, about eight states have 17 years as the age of consent and 12 states have 18 as the age of consent. Japan has 13 years, Austria, Italy and Portugal have 14 and Denmark, France and Sweden fix theirs at 15 years.

Even though the furore about section 7 of the Bill revolves around the contention that the section reduces the age of consent to 11 years, and even though this is not so, one of the salient issues about the Bill and every other such statutory rape laws is the need to determine a practicable and realistic age for consent. The Bill as it currently stands prescribes 18 years as the age of consent and at the same time makes 21 years also applicable as the age of consent by adopting the definition of a child contained in the Infants Relief Act 1874.

However, whether it is 18 years or 21 years, it is important to ask the relevant question, whether such an age is practical and enforceable in the light of realities in Nigeria. It is common knowledge, which is also corroborated by specific studies, that most secondary school students in Nigeria who are under the age of 16 years are actually sexually active and the age of initiation of sexual activity in Nigeria is relatively low.

One then wonders, whether setting the age of consent at 18 or 21 reflects the common consciousness and experiences of the people or is an attempt to create an imaginary utopic world through the aegis of the law. It may be necessary to conduct relevant studies in order to determine the right age of consent applicable to the Nigerian situation.

In the final analysis, the Bill is not the monster people have made it out to be, especially as it relates to protection of children. There might be other provisions of the Bill that raise the perennial jurisprudential question of how far law should be used to enforce morality and the limit to which the state can limit personal liberty through the law, but that is a debate for another forum.

If assented to, the Act will supersede the provisions of the Child’s Rights Act on statutory rape (Schedule, Transitional Provisions, 1(2) of intended SOB 2015) and will impliedly repeal the inconsistent provision of the Child’s Rights Act on the defence available to a person accused of defilement. Ultimately, its provisions on child protection are a welcome attempt to provide protection for children from defilement and early sexual exploitation and manipulation.

Nonso Robert Attoh is a law lecturer in the Faculty of Law, University of Nigeria, Nsukka.

Culled from www.pemiumtimesng.com