By Janith Jayasinghe | Online Law Master | tags: Romeo-Juliet Law, Underage Marriage, Best Interest of Child, Rights of Child, Statutory Rape
William Shakespeare’s Romeo &Julietis familiar to most as the ultimate tale of young love. The story was about a love story between Romeo and Juliet who were respectively 16 and 13 years old. When Shakespeare brought Romeo and Juliet to life, he was intentional in choosing two young characters as his protagonists. Then as now, two teens having consensual sex is understandable. Nobody labeled Romeo as sex offender at that time. But if Romeo was in today, he would have labeled as sex offender and imprison for 10 years. Romeo-Juliet law was coming as a protection for such tragedies.
Romeo-Juliet laws was firstly adopted in western countries i.e. USA and later on it spread to the Asian and African region. USA adopted Sex Crimes Laws to protect their children. But for that same law consensual teenage acts also covered and they also charged with similar charges. After reporting few incidents parents across the USA started fighting against their laws arguing that current law put underage sex among the teenagers into the same category as violent sexual offenders and that imposing similar punishment to their does not fit to the crime.
Some states, i.e. Texas responded to the parent’s voice and amend their laws and introduce Romeo-Juliet laws to the world.
Linda Lowen, the famous U.S journalist wrote that, Romeo and Juliet laws attempt to legally define the difference between child molestation and sex between consenting teenagers. The main purpose of Romeo-Juliet law is to make a distinction between the forced sexual relationships by a pedophiles with consensual teenage sex. Hence, it attempts to prevent adolescent sexual behaviour being considered as a criminal offense.
Many countries around the world now recognize Romeo-Juliet laws in their legal systems. However, though the concept is same the way countries adopt the Romeo-Juliet is different from country to country.
In the Teddy Bear Clinic case certain issues came before the Constitutional Court when it considered whether criminalizing consensual underage sex violated the constitutional rights of children. The Constitutional Court held that adolescents have a right to engage in healthy sexual behavior and that such acts were part and parcel of normative development from adolescence to adulthood. The Court held further that criminalizing consensual sex or sexual activity between adolescents aged 12 – 15 violated their rights to privacy, bodily integrity and dignity. Criminalizing such behaviour was also not in the best interests of the affected children and court ordered the parliament to amend the relevant act to avoid the aforesaid issues.
In the J v the National Director of Public Prosecutions and Others it was held that, “the automatic inclusion of the particulars of persons, who were children at the time of the commission of sexual offences, in the National Register for Sex Offenders is contrary to the best interest of the child principle and therefore not justiﬁed in an open and democratic society.” The preamble of the amendment act clearly emphasized their intention of upholding the aforesaid judgment through this enactment.
Act limited mandatory obligation upon the doctors regarding reporting consensual teenage sex as shown in the below table.
Source: South African Medical Journal
Figure 1: The reporting and service delivery obligations of healthcare providers in South Africa
Sri Lanka have no complete recognition of Romeo-Juliet law. However, in Section 364(2) proviso they partly recognize Romeo-Juliet laws. Due to lack of strength of this provision in 2015 Law Commission emphasize the importance of recognizing Romeo-Juliet laws to the legal system and recommend to add Romeo-Juliet law clause into Section 364 of the penal code. Commission recommends that section 364(2) to be amended by deletion of the proviso to the section and by insertion of a Romeo-Juliet law clause. But sullenly, this recommendation was never came into existence.
Though Romeo-Juliet law is not clearly recognized under our law, Supreme Courts have followed this concept in several cases.
A logical explanation was given in the Samantha Sampath case, why we need to incorporate Romeo-Juliet laws and the concept of natural law. In this case victim was a 15-year old girl and she got pregnant as a result of her love affair with the accused person. Noticeably neither the teenage mother nor her parents did make any complain against the young father for rape. But a case was brought before high court as a result of complain made by an outsider. In the trial young father pleaded guilty and court imposed a punishment of 2 years rigorous imprisonment suspended for 10 years. Maintenance for the baby born out of this young lovers was paid by this young father and even he attends for the parents meeting of their child.
Later on, AG appeal the HC decision to the Court of Appeal. Court of Appeal follows the literal rule of the Section 364(2)(e) of the Penal Code and it set aside the suspended sentence and imposed 10 years rigorous imprisonment.
When the matter brought before Supreme Court, it set aside the Court of Appeal judgment and upheld the HC judgment.
Liyanage Rohana Vs. AG is also another important case which discussed about Romeo-Juliet law and unjust which would cause to the adolescent lovers if mandatory minimum punishment imposes.
In this case also victim and accused had sexual relationships as willing partners and moreover victim stated to the JMO, ‘I went with him on my own free will and lived together with him.’ However, learned trial judge of high court follow the literal meaning of the penal law and convicted the young lover and order 10-years rigorous imprisonment to him. When the matter was appealed, court of appeal consider the conduct of the accused. Evidence led to the fact that accused intended to keep the prosecutrix as his partner in life with the blessings of his kith and kin. And also during the trial prosecutrix was reluctant to testify against the accused. Amarathunga J. stated that, ‘there is no doubt whatsoever that the accused is technically guilty of the offence in section 362(2)(e) of the Penal Code. Moreover, he hold that this is not a case where the accused has to suffer a custodial sentence’ Supreme Court held that, ‘Even though the woman’s consent was immaterial for the offence of rape when she is under the age of 16 years, a woman’s consent is relevant for a Court, in the exercise of its discretion in deciding the sentence for such an offence. The High Court Judge had also noted that a custodial sentence of 10 yrs. R.I. would not benefit the complainant’ and sentenced accused for 2-years rigorous imprisonment suspended for a period of ten years.
 Steve James, ‘Romeo and Juliet Were Sex Offenders: An Analysis of the Age of Consent and a Call for Reform’ (2009) 78 UMKC Law Review 241
 Shakespeare-online.com, ‘Scenes from Shakespeare’s Romeo and Juliet – The Complete Text of Romeo and Juliet’ (2015) <http://www.shakespeare-online.com/plays/romeoscenes.html> accessed 11 April 2018.
 The Shapiro Law Firm, ‘Romeo and Juliet Laws in Texas’ <https://www.theshapirolawfirm.com/News-and-Resources/Articles/Romeo-and-Juliet-Law-in-Texas.shtml> accessed 8 April 2018
 Linda Lowen, ‘Is Your Daughter’s Older Boyfriend A Romeo Or A Molester?’ (2017) <https://www.thoughtco.com/romeo-and-juliet-laws-what-they-mean-3533768> accessed 24 March 2018
 Criminal-Law, ‘Romeo and Juliet Law’<https://criminal-law.freeadvice.com/criminal-law/violent_crimes/romeo-and-juliet-law.html> accessed 28 March 2018
 Smith, B. and Kercher, G., ‘Adolescent Sexual Behavior and the Law’ (CrimeVictimsInstitute, 2011) <http://www.crimevictimsinstitute.org/documents/Adolescent_Behavior_3.1.11.pdf > accessed 11 March 2018.
 See https://statutes.capitol.texas.gov/Docs/SDocs/PENALCODE.pdf Penal Code of Texas, Section 20.02, ‘It is an affirmative defense to prosecution under this section that:
(1) the person restrained was a child who is 14 years of age or older and younger than 17 years of age;
(2) the actor does not restrain the child by force, intimidation, or deception; and
(3) the actor is not more than three years older than the child’
Development and Another 2013 (12) BCLR 1429 (CC).
 Strode A, Slack C, Essack Z. ‘Child consent in South African law: Implications for researchers, service providers and policy-makers’ (2010) 4 South African Medical Journal 100. 247-249
 Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional
Development and Another 2013 (12) BCLR 1429 (CC).
Development and Another 2013 (12) BCLR 1429 (CC).
 Criminal Law (Sexual Offences and Related Matters) Amendment Act No.05 of 2015, “to ensure that children of certain ages are not held criminally liable for engaging in consensual sexual acts with each other; to give presiding officers a discretion in order to decide in individual cases whether the particulars of children should be included in the National Register for Sex Offenders or not”
 Criminal Law (Sexual Offences and Related Matters) Amendment Act No.05 of 2015, Section 15. (1) A person (‘A’) who commits an act of sexual penetration with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child, unless A, at the time of the alleged commission of such an act, was—
(a) 12 years of age or older but under the age of 16 years; or
(b) either 16 or 17 years of age and the age difference between A and B was not more than two years.
(2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the [National] Director of Public Prosecutions if [both]A [and B were children] was either 16 or 17 years of age at the time of the alleged commission of the offence and the age difference between A and B was more than two years [: Provided that, in the event that the National Director of Public Prosecutions authorizes the institution of a prosecution, both A and B must be charged with contravening subsection (1)].
 J v the National Director of Public Prosecutions and Others,  ZACC 13
 S Bhamjee, Z Essack, A E Strode, ‘Amendments to the Sexual Offences Act dealing with consensual underage sex: Implications for doctors and researchers’ ( 2016) 106 South African Medical Journal 3< https://www.ncbi.nlm.nih.gov/pubmed/26915937> accessed 16 May 2018
 Provided however, that where the offence is committed in respect of a person under sixteen years of age, the court may, where the offender is a person under eighteen years of age and the intercourse has been with the consent of the person, impose a sentence of imprisonment for a term less than ten years.
The offender is under 18 years of age, and the evidence establishes that there are circumstances which justify the imposition of such a lesser sentence;
The offender is over 18 years of age and under the 21 years of age, and the evidence establishes that there are exceptional and compelling circumstances which justify the imposition of such a lesser sentence
Where the court so determines that a lesser sentence should be imposed, it shall record the reason for the imposition of such sentence.
 Liyanage Rohana V AG HC Anuradhapura, SC Reference No 03/08, HC Anurdhapura, No 333/04 (HC Anuradhapura) and Samantha Sampath V AG HC Kurunegala, SC Appeal No 17/2013, HC Kurunegala No 259/2006 (HC Kurunegala)
 Penal Code amended by Act No.22 of 1955
 Liyanage Rohana V AG HC Anuradhapura  2 S.L.R. 177