There has been an alarmingly growing phenomenon of sexual offences perpetuated against women and children the world over. The United Nations General Assembly very recently passed Resolution 1825 of 2008 making sexual offence a war crime. In Sierra Leone, there are frequent reports of women and children being raped since after the civil war. The Family Support Unit, a specialized unit within the Sierra Leone Police Force, created to deal with such matters is inundated with reports  thus finding it difficult to adequately address cases within its jurisdiction . The reasons for such increase are multi-faceted. It includes victims’ lack of access to justice to seek remedy for fear of being stigmatized and/or ostracized by their communities; fear of reprisals especially in situations where the perpetrator is an intimate partner; and perhaps most importantly the lack of appropriate, and in some instances the existence of conflicting laws to adequately deal with matters of sexual offences This article examines the sexual offences laws by highlighting some of the contradictions to the Child Rights Act and the Gender Acts of 2007 especially with regards the age of consent and the need to update them.

In Sierra Leone, laws in relation to sexual offences are mostly governed by the Prevention of Cruelty to Children Act (Cap 31 of the Laws of Sierra Leone), the Offences Against the Persons Act of 1861 and the Domestic Violence Act of 2007. In the administration of justice in sexual offence cases, the age of the victim is very important as it determines the law under which an alleged perpetrator is prosecuted and the sentences imposed if found culpable for the offence as charged. Under Cap 31, it is an offence to have sexual intercourse with a child below the age of 14 even if such child consents. This is because at 14, it is assumed that a girl can hardly make informed decisions and if she becomes pregnant, the effects can be adverse. A case before the court involves a 15 year old girl who was allegedly impregnated by a young man in his late twenties. The family of the girl is worried whether she would be able to give birth by herself considering her age and health implications. Implicitly though, it is lawful to have sexual intercourse with a child of 14 where she consents. This is in line with the definition of a child under the Children and Young Persons Act (Cap 44 of the Laws of Sierra Leone). The said Act defines a child as anybody below the age of 14. On the contrary, the Child Rights Act and the Gender Acts of 2007 define a child as any person below the age of 18; that is, the age of consent is 18. The seeming contradiction here is that whilst Cap 44 establishes the age of consent at 14, the Child Rights and Gender Acts 2007 put it at 18. This has led to very contentious debate between the prosecution and defence as to which law should apply in respect to particular charges. The resultant effect is that most victims have been denied justice. For example, according to the International Rescue Committee (IRC) Rainbow Centre Annual Report 2007, more than 800 cases of sexual offences were sent to court but only 13 perpetrators were convicted. In order to address this problem and thereby adequately protect children against sexual offences, the age of consent as defined by Cap 44 needs to be harmonized to meet the standard set by the Child Rights and Gender Acts of 2007.

Also, the treatment of sexually abused girls under the age of 13 and below 14 is another issue of concern. Whilst section 6 of the Prevention of Cruelty to Children Act defines an unlawful carnal knowledge and abuse of a child under the age of thirteen as a felony, with perpetrators liable to conviction before the Supreme Court to an imprisonment not exceeding 15 years, section 7 of same defines the same offence against a girl above the age of 13 but under 14 as a misdemeanor, with a penalty not exceeding two years of imprisonment. This distinction in offences and punishment for these two age brackets trigger in a sane mind the following enquiries: what significant difference lies between the two children in terms of physical appearance and maturity? Wouldn’t both children within the respective age brackets suffer the deleterious effect of early sex and sexual abuse including developmental problems such as dissociative symptoms as well as anxiety, depression etc? Would the child covered by section 7 be more protected from unwanted pregnancy more than the one covered by section 6? This section treats a serious offence far too lightly. Additionally, the definition of sexual offences often revolves around consent which in simple terms is all about permission. Both sections (6 and 7) rightly disregards consent, which one may want to believe, is in recognition of the fact that children within both age brackets are incapable of making informed decisions. Why then would there be a distinction regarding gravity of offences and its accompanied penalty when an act of a similar nature is committed on children belonging to these two age brackets? The above enquiries beg the question as to whether the law was really enacted to provide an equal protection for children who are victims of sexual offences. .

Section 10 of the Prevention of Cruelty to Children Act makes provision which discriminates against the girl child contrary to the Principle of Non-discrimination of the Child Right Act, Convention on the Rights of the Child and The African Charter on the Rights and Welfare of the Child. Girl, under this section, refers to any child ‘not being a common prostitute or of immoral character’. In short, the law is saying that a child prostitute is unprotected if abused. It should be stressed that whether the child is a prostitute or not, she is a victim and should be given the full protection of her rights under the law and that the words ‘not being a common prostitute, or of unknown immoral character’ should be expunged from the said Act.

Section 12 of the Act Prevention of Cruelty to Children Act covers the offence of abduction for immoral purposes; that is, taking a girl under the age of sixteen away from her parents or guardian without their consent, with the intention of having sexual intercourse with her. This carries a maximum sentence of two years. In essence, where the girl under sixteen is taken away from her parents or guardian with their consent, it does not amount to a crime. Such acquiescence of the girl’s parent or guardian in this case contravenes the girl’s right to protection from forceful marriage provided for in section 34 (1) of the Child Rights Act 2007.

Perpetrators who sexually abuse children above 14 years are tried under the Offences Against the Persons Act of 1861.There are several offences covered under this Act that is meant to protect children from sexual violence.  Section 48 for instance covers the offence of rape of a girl over 14 while section 52 covers the offence of indecent assault of a girl over 14. Rape of a girl over 14 carries the maximum sentence of life imprisonment as it is considered a very serious offence. However, the procedural conduct of trials of perpetrators for the offence of rape against a girl of 14 under the Act has often created more harm than good to victims. The major element of prove of rape  under the law is consent. The prosecution in such cases will need to prove before the court that the act was committed without the consent of the girl. This will be backed by evidences such as the use of force, threat and fraud. The defense counsel’s task in the instant will be focused more on determining the victim’s fault rather than the perpetrator. Consequently, far from protecting the victim, prosecution of rape offence against children as well as adult has served to stigmatize all but a few as liars and whores, as vindictive and spiteful and as villains rather than as victims. Additionally, the very idea of the victim narrating the horrendous experiences she has undergone from the hands of perpetrators further adds to her woe. In one instance, a victim refused to testify in court, saying that nothing was done to her. In another case, a girl aged 15, burst into tears when testifying as those present in court were murmuring and laughing to the annoyance of the presiding Magistrate. The Magistrate adjourned the case. In order to remedy such from happening in the future, the Court should have charged people who do such of contempt and impose stringent fines.

The above discuss clearly points out to the normative inadequacies and inconsistencies in the laws governing sexual offences in Sierra Leone. Sexual violence violates international human rights standards. It is a form of assault that results in physical and psychological trauma and injury. Medical consequences are dire and may include death, injury, unwanted pregnancy, infertility, chronic and life -threatening diseases such as the HIV/AIDS, as well as a host of emotional and mental health issues including depression, anxiety, and sexual dysfunction. These effects become much more pervasive in the cases of child victims. Human rights law emphasizes the positive obligation of state to protect children from all forms of violence, abuse, exposure to physical and moral hazards and oppression, and sexual exploitation. Such obligations include not only the enactment of criminal laws proscribing acts of sexual violence against children, also the adequate implementation of those laws by stakeholders including even   parents, guardian or relatives who more often than not withdraw sexual violence cases involving their children or wards from courts. The latter practice has become so rampant that a presiding Magistrate on one particular occasion addressed the court on the issue pointing out some of the impact this practice may have on children. If children are to be protected adequately from this menace, it is but expedient that Parliament fast-track the enactment of the already drafted sexual offences bill into law.