Africka Stephens | Young love on trial: Criminalise or guide?

Last week’s story in The Gleaner - “When Kids Get Caught — Heartache as grandmother struggles with teen grandson’s sexual assault charges” - laid bare a heartbreaking but avoidable consequence of our current law.

A 16-year-old boy - a prefect and honour-roll student – is now navigating Jamaica’s criminal justice system. He and his 15-year-old girlfriend were found engaging in consensual intimacy, yet only he was charged, and only he is bearing the legal and psychological burden. This is not justice. This is harm inflicted by law itself.

LEGAL LANDSCAPE

Under Jamaican law, children under 16 cannot legally consent to sexual activity. There is no statutory close-in-age exception for consensual peer relationships. This means that two minors may both, in theory, be criminally liable for consensual sexual activity merely because of their ages.

The Child Care and Protection Act, paired with the Child Diversion Act, aims to shield children from harm while steering them away from punitive systems and toward rehabilitation and support services.

The Child Diversion Programme, operational since 2020, reflects that protective philosophy, redirecting many children from courts to counselling, education, and community-based interventions. Yet the current legal framework still places consensual peer sexual conduct directly into the criminal justice pipeline, burdening children, families, and the system.

CLOSE-IN-AGE EXCEPTION

A close-in-age exception does not lower the age of consent or endorse early sexual activity. Rather, the exception recognises that adolescent relationships can exist without exploitation and that law should not criminalise typical peer behaviour.

Jamaicans for Justice (JFJ), in its December 2025 report Review of Diversion and Alternative Measures for Children recommended this kind of approach:

• No offence where partners under 16 are less than two years apart in age, so such matters need not go before the courts.

• A further statutory defence could apply where the age gap is larger (up to roughly five years) only if the activity was consensual, there was no authority, dependency, or exploitation, and the younger partner was at least 12–14.

These proposals would keep all predatory, coercive, or exploitative conduct fully prosecutable — no exceptions.

This nuanced approach acknowledges that the current one-size-fits-all prohibition has nothing like the safeguards JFJ and child rights advocates suggest. Yet even within the debate, experts such as the Children’s Advocate have emphasised that any close-in-age framework should be strictly between minors, not between minors and adults, to avoid real risks of exploitation.

CANADA AS A GUIDE

There are countries like Canada that set the age of consent at 16 but layers in close-in-age exceptions:

• 14–15-year-olds may consent to sexual activity with a partner less than five years older so long as there is no authority or exploitation.

• 12–13-year-olds may consent with partners less than two years older, again without exploitation. Under this framework, consensual peer relationships are treated as non-criminal while exploitation remains strictly punished.

This tiered approach has existed since 2008 and aims to protect youth from predators and prevent the criminalisation of consensual behaviour between peers: exactly the gap exposed in our own legal framework.

WHY REFORM NOW?

The story of the 16-year old boy is not an isolated one. Data from the Child Diversion Programme reveal that sexual offences, especially consensual intercourse with a person under 16, make up the majority of cases referred for diversion.

Our law, by default, equates all sexual activity under 16 with criminal harm, regardless of consent or context. The unintended consequences are that-

• Children are treated as offenders even when both parties consent and no exploitation occurred.

• Families are traumatised, as we see in The Gleaner news story, with children missing school, facing court dates, and being at risk of long-term stigma.

Close-in-age defences are essential for Jamaica’s justice system and should be integrated through a framework that best serves our unique social needs. Canada’s “close-in-age” exceptions can serve as a useful guide, Jamaica’s framework need not be identical to that of Canada.

A reform that includes a balanced close-in-age exception aligns with child development realities, respects the protective aims of the Child Care and Protection Act, and focuses scarce justice resources where they are truly needed: on exploitation, abuse, and coercion, not on peer conduct.

NOT ENCOURAGING EARLY SEX

Critics will rightly ask: Doesn’t this legitimise teen sex? The answer is no. Maintaining the age of consent at 16 remains crucial. Any close-in-age exception would simply allow the law to differentiate between consensual peer activity and exploitative conduct. It would also help shift the conversation towards education, counselling, and family support not conviction and criminal records.

CALL TO LAWMAKERS

Children deserve laws that protect their development and dignity. A legal framework that throws them into the criminal justice system for consensual peer intimacy does not do that. Jamaica must explore legal reform that includes close-in-age statutory defences, expands comprehensive sexual education, and strengthens support services for families and young people.

There is an urgent need to transform laws from instruments of punishment to tools that guide, protect, and support Jamaican children.

Africka Stephens is Fi We Children Foundation executive founder and attorney-in-waiting. Send feedback to columns@gleanerjm.com and info@fiwechildren.org.