A man convicted of sexually assaulting a schoolgirl has failed in his attempt to have a section of law pertaining to sexual offences declared unconstitutional.

Under the Criminal Code Act, defendants under the age of 21 can put forward a defence of mistake — such as that they were unaware of the age of the complainant — while those over 21-years old cannot.

Kristopher Gibbons, 22, and three other men were all charged with sexually assaulting a 14-year-old girl in an incident on July 27 last year. Gibbons, who was 21 at the time of the incident admitted receiving oral sex from the girl that evening and touching her genitals.

While his co-defendants were all acquitted following a Supreme Court trial, Gibbons was convicted of sexual assault by a majority verdict.

According to a judgement by Acting Justice Charlene Scott, defence lawyer Dantae Williams, representing Gibbons, sought a judicial review arguing that the statutory provisions which govern age and consent under the Criminal Code, as it pertains to sexual offences alleged to be committed by persons 21 years of age and older were unconstitutional.

In her judgement, Acting Justice Scott wrote: “In respect of certain sexual offences, the laws of Bermuda afford defences to defendants under the age of 21 years who engage in sexual conduct with young girls over 14 years old.

“Perhaps that may be less morally reprehensible because a younger person’s behaviours are not thought out and are oftentimes rash and spontaneous.

“The older man may find himself in a situation where the best response is to walk away and instead he chooses to engage in sexual behaviours later found to be inappropriate and then want to blame someone else for his misfortune. Time to take responsibility for one’s actions.”

She said the Parliament had carefully considered the various ages of criminal responsibility and the age of victims in respect of morality offences, establishing clear cut-off points. She said those cut-off points were not unconstitutional, calling it an exception to the constitution.

“Parliament intends that if one engages in adult activities, one is also responsible not only for one’s actions and thoughts but also suffers the consequences of one’s actions,” she wrote.

The Judge dismissed the application, stating that so far Gibbons has been afforded his constitutional rights throughout the criminal process.