The Immigration, Belizean Nationality and Passport amendment bills have been the dominating highlights from this week’s meeting of the Senate. However, one other important piece of legislation brought to Senate on Wednesday is the Criminal Code Amendment Bill (2). The bill, says Government, will provide equal protection for both males and females from carnal knowledge, rape, incest, abduction and kidnapping by male and female offenders and institute stiffer penalties for these offenses. In addition, persons living with diverse abilities will be guarded by the provisions contained in the bill as well. It also proposes the establishment of a sexual offenders’ registry, which though will not be made public just yet, will be available to the police department, social services and the education sector. Such bill has drawn a vast amount of public concern and after weeks of consultation and re-drafting, some Senators still believe that more tweaking needs to be done.
Mr. President, we commend the gove rnment for their overall effort in seeking to strengthen the Criminal Code Act. However, we find some sections objectionable and we have some recommendations that we would like to share. We hope that these are seriously considered: Section 45 (a) is objectionable because it requires the lack of consent of a person under the age of 16 years old to touching in order to convict for sexual assault. We would recommend deleting the term “or reasonable belief that the person consents” in Section 1, and deleting Section 2. Mr. President, the element of reasonable belief that the other person consents is unwelcome as it purports to establish consent by a victim, based on the accused subjective view and version of the offence. We must ask ourselves, what subjective factors will convince a person that another has consented to sexual intercourse, when in fact, that person has not given his or her consent. A victim who has in fact, not consented, will have to further need evidence, pointing to why subjectively, the accused may have wrongly believed he or she was consenting or that the accused did not believe he or she was not consenting at all. Thus, we believe that the burden of proof on the victim has increased. In Section 47 (1), we say that a child under the age of 14 cannot consent. We recommend that we delete the Section that says “with or without consent” again. We do acknowledge, however, that this is the same wording as was in the original Criminal Code provisions, but we suggest that where it relates to a child under the age of 14, that that section “with or without consent”, be removed. In Section 47 (b), Mr. President, we recommend deleting the term “intentionally”. It is difficult to imagine how these acts, which are for sexual nature, can be done without being intentional. It is proposed that the word “intentionally” be removed from this Section, as it unnecessarily leaves room for the discretion in behaviour that should be strictly punishable. We note that the offense of rape does not require that the finding of the action was done intentionally. In Section 47 (e), Mr. President, we recommend deleting the term “intentionally”.
Attorney and new Senator, the Hon. Anthony Sylvester, next provided a detailed analysis of Section 62 – a section that speaks to incest.
“With reference to Section 62 with the issue of incest. The original drafting of the penalty being for 2 years. It has been redrafted and that “the person so convicted is liable to imprisonment to not less than 12 years, but may extend to life imprisonment. But then , when we go to Section that speaks about incest with consenting relative, Section 62 (a), the penalty there is 2 years. Our respectful view, Mr. President, it seems to water down the gravity of that offence. Incest is an offense where persons of a particular familiar connection, have intercourse with each other and whereas in the principal, Section 62, it is an absolute offense and a person thereby convicted of that offense is is liable to imprisonment to not less than 12 years, but may extend to life imprisonment, there seems to be a lowering of the standard to that respect to that offense. In the following 62 (a), persons who have a familiar connection, there are adults who have consent to have sexual intercourse, thereby, the offense of consenting incest, those persons would be liable for 2 years. It is an error as it is inconsistent with respect with the scheme of that offense”.
In some corners, the bill has been dubbed the Gender Neutral Bill. It has been argued that the bill comes in conflict with Section 53, which criminalizes sodomy and seeks to term the anus as a sexual organ. This uproar led the Constitution and Affairs Foreign Committee to host consultation hearings with members of the public, to get feedback and recommendations on the bill. After that process had been completed and the bill passed in the House of Representatives, some Senators still had some reservations on this particular clause.
Mr. Mark Lizarraga- Senator for Business Community , in Section 71, Mr. President, This Section did not appear in the Criminal Code, Amendment Bill No. 2, and we find it to be wholly objectionable. This provision seeks to blatantly to amend Section 53, which, as we all know, is under legal challenge. Sex, Mr. President, whether by rape or otherwise of a man or by a man, or anal sex cannot cannot be consented to, under Section 53. This is sodomy. This provision should exclude “penetration of the anus”, which, under present law is sodomy, and not, rape.
“Then, I look at the fact that the churches have submitted and in some corners, their submissions have been referred to as “mischief making” or “creating unnecessary trouble”, but then, I look at Section 71; the redefinition of “rape” is no longer the penetration of the vagina”, but we have added on, “the anus”. Many will argue that, but that is the reality. But I can see where the churches have some concern with the use of the word “anus” because it changes the colour of the discussion. So, if we are saying that in Section 53, any activity, having to do with homosexuality is still at this time, illegal, (because it is before the courts), then, I don’t believe that calling the churches’ concern, just being problematic, would be correct. We need to take the time to look at the definition to recognize the gravity and to know that once this is passed through, then, what does that say for the challenge that is presently before the courts”.
And while varied clauses have garnered some opposition, there has been an overwhelming amount of support for Government’s effort to provide a robust protection framework against the sexual abuse and exploitation of children. At the same time, affirmed Senator the Hon. Karen Bodden, Government must ensure that measures be implemented to guarantee the success of bills, such as the Criminal Code Amendment (2). For content, we highlight two examples presented by the Senator.
Hon. Karen Bodden Senator for the Opposi: Opposition example, at 47 (c), I read in A and B about a person who performs sexual acts so as to be observed, I questioned then, what about those hundreds of families and recognize that you have situations where the housing conditions are so poor, that there is no way that any sexual activity will occur in that proximity without being observed by children. Then, I realized that if our Act is to achieve this goal, it has to be supported. For example, what is it that we are able to do at this time to improve living conditions in terms of the poor and underprivileged to ensure that we offer the kind of protection that is not only in the letter of the act, but in the spirit of the Act? Another area was using at the use of substances., at Section 50, through Sub section (c), we all know that date rape substances are being used, there is easy access to those substances as well. A red flag goes in my mind that again here if this act is to have the teeth that is expected to, there has to be a relationship between what is being proposed here and the support system. So, how many of our children are privy to drug education? How many of our families are privy to that? How good have we been at enforcing laws in terms of controlling the sale of substances to minors? For the Act to have the teeth that it needs to have, there are many considerations that need to be taken with some level of urgency”.
Leader of Government Business, the Hon. Godwin Hulse concluded the discussion on the bill, reiterating that it is a momentous shift in Belize’s criminal law.
“This Bill seems to have had unanimity in its approval. With 47 here “with or without consent”, what it is really saying is the argument that the child consented is with or without consent. It doesn’t matter- nothing matters…it is an offense. With respect that the anal sex that are now an abomination that some people call them, etc., again, it is trying to capture the spirit of the Bill, to strengthen the law into all these heinous acts that are taking place. About “intentionally administers a substance to, or causes a substance to be taken to a person, knowing the person does not consent”; as a high bar, it says the same thing. You put an aphrodisiac to induce the person to consent, is an offense. With all these pieces of legislation, Mr. President, the spirit of this senate are a in-a-way-working-progress because as we evolve and we see more and more things , we modify. Sometime ago, I remember where there was a crime when somebody raped a dead woman in the Belmopan Hospital. We did not even have law on those things, But Hon. BQ Pitts had to come up with some definition of what that was because people did not know what that was”.