The Law Reform Commission has recommended raising the minimum age of criminal responsibility and reforms to sections of the Penal Code related to abortion.
In a discussion paper seeking public input, the Commission asks whether the criminal offence sections related to ending a pregnancy should be replaced by a dedicated law providing women with safe access to abortions.
The commission published the recommendations on 29 Dec. in a report that reviewed sections of the Penal Code in terms of their compatibility with the Bill of Rights of the Cayman Islands Constitution.
The provisions highlighted as potentially incompatible are the minimum age of criminal responsibility and those relating to procuring an abortion, compulsion by spouse, insulting the modesty of a woman, unnatural offences, indecent assault and incest.
The paper is the first part of a Penal Code review requested by the attorney general.
While the Penal Code has been revised with the introduction of new offences and amended for the type and length of punishment for other offences, the report noted it has not undergone a comprehensive review since its introduction in 1975 to determine if any of the provisions are now outdated because of social change.
The paper outlines its findings on each provision that is potentially incompatible with the Bill of Rights and raises questions for public consultation.
In the Cayman Islands abortion is only allowed to save the life of a pregnant woman.
Anyone who attempts to procure an abortion or supplies drugs or an instrument to assist with the procurement of an abortion commits a criminal offence.
While there have been no reported criminal cases for the offence, the Law Reform Commission cited a government survey which in 2013 found that out of 202 participants, 9.1% of 15 to 16 year olds, and 8.5% among 17 to 19 year olds admitted to having an abortion.
“International human rights legal instruments and authoritative interpretations of those instruments support the claim that the right to access safe abortion services is a human right and compel the conclusion that women have a right to decide independently in all matters related to reproduction, including the issue of abortion,” the discussion paper stated.
“Where abortion is illegal and unsafe, women are forced to carry unwanted pregnancies to term or suffer serious health consequences and even death.”
Approximately 13% of maternal deaths worldwide are attributable to unsafe abortions, it said.
The commission noted that the criminalisation of the procurement of abortion may not be compatible with women’s fundamental right to life protected in section 2 of the Bill of Rights.
This ensures that everyone’s right to life shall be protected by law and that no person shall intentionally be deprived of his or her life.
The right to life is also protected by the International Covenant on Civil and Political Rights and the Convention on the Elimination of Discrimination against Women, which are both extended to the Cayman Islands, the report said.
As a fundamental legal principle, human rights apply only after birth.
The discussion paper pointed to Jamaica, where procurement of abortion is also illegal. There, the Ministry of Health concluded that the offence provision encroached on the reproductive rights of women, the right to liberty and security of the person, and the right to privacy. But a civil law to regulate abortions has not been enacted.
Cayman’s Law Reform Commission said it is of the view that reform is needed in the area of abortion and referred to Australia’s approach, which focuses on the safety requirements needed to terminate a pregnancy.
Australia decriminalised the conduct of a woman seeking an abortion and ensured women’s access to safe health care by regulating “that only a suitably qualified medical practitioner can terminate a pregnancy when having regard to all relevant medical circumstances, and current and future physical, psychological and social circumstances of the woman and they are in compliance with professional standards and guidelines”, the report said.
The discussion paper asks the public for input on whether the relevant sections of the penal code should be repealed and substituted by new legislation that would provide safe access to a pregnancy termination under various conditions and factors.
The Law Reform Commission also recommended that the age of criminal responsibility should be raised from 10 to either 12 or 14 years.
The age at which someone is not presumed to have infringed criminal law under Common Law is 7 years. Children between the age of 7 and 14 are presumed not to have the necessary knowledge for criminal intent, unless it can be shown that the child knew his or her actions were morally wrong.
Many countries have moved away from this presumption of doli incapax and raised the minimum age to 10 or 12 years, the Law Reform Commission noted.
In Cayman, the minimum age of criminal responsibility is 10 years or under, and the presumption of doli incapax up to age 14 is still in effect.
The United Nations Convention on the Rights of the Child found that the use of two minimum ages, like in Cayman, “is not only confusing, but leaves much to the discretion of the court or judge and may result in discriminatory practices”.
Most European countries have a minimum age of criminal responsibility of 14. The UNCRC recommends a minimum age of at least 12 and has in the past criticised the UK, where in England and Wales the minimum age is currently age 10.
The Commission said it “is of the view that children must be protected from the harmful effects of early criminalisation while ensuring that incidents of harmful behaviour by those who are under the minimum age may be effectively investigated to ascertain the facts surrounding the behaviour”.
In the Cayman Islands, a defence of compulsion by a spouse may be used when someone accused of a crime can prove that their act or failure to act was in the presence of and under coercion from their spouse. The defence does not apply on a charge of murder or treason.
The commission’s discussion paper recommends that the offence of compulsion by spouse in section 16 of the Penal Code be repealed.
By offering protection only to an individual who is married, the section of the Penal Code is discriminatory may not be compatible with section 16 of the Bill of Rights on non-discrimination.
“The rights that are available to a married person should also be available to any individual whether they be civil partners, common law partners, siblings and parents,” the discussion paper stated.
The intent of the Penal Code offence related to insulting the modesty of a woman is to punish deliberate lewd acts directed at females. It expresses sexual assault where the perpetrator has stopped short of causing physical harm.
Because the offence is only in relation to women, it may raise compatibility issues with Section 16 of the Bill of Rights.
The offence of insulting the modesty of a woman also fails to specify where the insult must occur before it can amount to an offence. “Therefore, even insults exchanged during an argument in a private dwelling can amount to a criminal offence,” the Commission said.
In these instances, there may be a conflict with a person’s right to private and family life as well as their right to expression enshrined in sections 9 and 11 of the Bill and Rights.
The LRC recommends repealing the relevant section 133 of the Penal Code.
Cayman also has in place section 88A of the Penal Code, which makes it an offence for a person to intentionally harass, alarm or distress another person by using threatening, abusive or insulting words or behaviour.
The Commission suggests the word “insulting” should be deleted in the provision to prevent frivolous charges and arrests.
Although an Order in Council effectively decriminalised homosexuality in 2001, certain sections prohibiting sexual acts between consenting adults of the same sex remain on the statute books.
These sections are discriminatory and potentially incompatible with several sections of the Bill of Rights, including freedom from discrimination and the right to private and family life.
The report noted that a further discrimination occurs because the Order in Council sets the age of consent to engage in homosexual relations at 18 years old, whereas the age of consent to engage in heterosexual relationship is 16.
The commission recommends sections 144 and 145(5) should be repealed.
The Penal Code includes other gender-specific provisions and offences, both for indecent assault and incest.
The commission recommends they be replaced by general, non-gender specific provisions.
The paper concluded, “There can be little doubt that a review and reform of many [Penal Code] provisions are long overdue”, not least to ensure that they conform with the standards of human rights prescribed by the Bill of Rights.
The Commission said this should be done in a structured way that “allows for public participation, rather than for society to wait for the issues to be addressed through a series of constitutional challenges before the courts”.
It considers its discussion paper a first step in the process.
Although the commission has recommended that certain sections be amended or repealed, it invites submissions from the public in response to questions it raises in the report.
The commission said it will make its final recommendations only after considering the public input.
Submissions should be forwarded no later than 15 March, 2022 to the Director of the Law Reform Commission, 4th Floor Government Administration Building, Portfolio of Legal Affairs, 133 Elgin Avenue, George Town, Grand Cayman, P.O. Box 136, Grand Cayman KY1-9000 either electronically to [email protected], or in writing, by post or hand- delivered.
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