The Sexual Offences Act became a part of the Laws of Guyana in 2010. Prior to its implementation, sexual offences were housed in the Criminal Law (Offences) Act Chapter 8:01 and the Summary Jurisdiction (Offences) Act Chapter 8:02.
According to the then Minister of Human Services and Social Security, Ms Priya Manickchand, the introduction of the Act “was aimed at protecting Guyana’s vulnerable people, men, women, and children” by affording protection to anyone who may need it.
The Minister assured that the Act is gender-neutral, and although women and children are considered more vulnerable, men are entitled to the same protection under the Act. These were some of the sentiments captured from the Minister’s speech in the Guyana Chronicle Newspaper Article on the ‘Sexual Offences Act model for Guyana implementation, too,’ dated May 27, 2010. The Act was set to bring about positive change in the country by targeting the increasing rate of sexual offences being committed.
Albeit, almost fourteen years after the implementation of the act, sexual offences continue to plague our society. In 2021, the report on national crime data for 2021, which also showed trends for previous years, revealed that sexual violence cases brought to the High Courts have long been significantly higher than other cases heard during the criminal assizes.
This did not escape the attention of Guyana’s head of state, President Dr Irfaan Ali, who expressed concern during a national address in November of 2021 as he compared crime data over the years for trends of growth and decline.
“If you look at rape, we had a fifty-five percent increase [for 2021]. This is an issue we have to get tough on. This is one of the areas that we have to see tremendous improvement,” President Irfaan Ali stated. [Reference](https://guyanachronicle.com/2021/11/18/sexual-violence-cases-remain-high-president-dissatisfied-with-outcomes/).
In Pompey v DPP CCJ Appeal No. GYCR2019/001, the Caribbean Court of Justice noted that sexual offences against minors are a tremendous cause for concern, regrettably not only in Guyana. However, the position in Guyana is grim, as evidenced by some shocking statistics the Director of Public Prosecutions presented to the Court.
Therefore, it is important that we are all educated and seek to educate those who come under our spheres of influence as we join in the fight to eliminate sexual violence against women, men, and children.
Definition of a Sexual Offence
The Childcare and Protection Agency, in collaboration with the United Nations Children’s Fund, created ‘A Guide to the Sexual Offences Act 2010’, which breaks down the Act to make it easier for all persons to understand its provisions. It defines a sexual offence act as occurring “when your physical body is interfered with in an inappropriate way by another person, that is when a person deliberately touches any part of your body including your private parts in a sexual way and/or by having sexual intercourse, all without your permission and/or consent.”
The Act outlines several sexual offences and their penalties, enabling victims – men, women, and children – to seek justice. The most common sexual offences are rape and sexual assault, and we will examine them herein in Part 1 of this series.
Common Offences under the Act
- Rape
Section 3(1) of the Act defines rape as the sexual penetration of another person’s body or causing another person to engage in sexual penetration with a third person without their consent, and the accused (the person committing the offence) must not reasonably believe that the person consented.
The offence of rape has four elements that must be proved beyond a reasonable doubt to establish the guilt of the accused. Each element will be examined.
- Sexual penetration: This refers to any intrusion of any part of the accused’s body or any object into the vagina or anus of another person and any contact of the accused’s mouth with the genitals or anus of another person. This penetration may be however slight and for however short a time. It includes but is not limited to oral – fellatio and cunnilingus, vaginal–sexual intercourse, female-to-female genital contact, and anal intercourse.
- Person: This refers to a male or female, adult, friend, or stranger, family member, teacher, or caregiver. This person is referred to as the complainant.
- Lack of consent: There must be no consent to sexual penetration. Consent is generally an overt expression of agreement in words or actions to engage in the sexual act(s). The person whose consent is needed must be competent and have the capacity to give his or her consent. This person must, therefore, have knowledge of the acts he or she is about to engage in and must understand the consequences of such an act, thereby voluntarily giving their consent.
Certain actions and reactions, or lack thereof, might be confused for amounting to consent. According to Section 5 of the Act, consent cannot be inferred from silence, the lack of physical resistance, and sexual arousal, including an orgasm or ejaculation. Additionally, in accordance with section 7 of the Act, where at the time of the sexual activity or immediately before the sexual activity, the accused used force or violence or threatened to use force, which in turn caused the person to fear that immediate violence would be used against him or her or some other person, such act would negate the notion that consent was voluntarily given.
Further, where the accused lied to or deceived the person as to the nature or purpose of the sexual activity or pretended to be someone personally known to that person, then it shall be concluded that the person did not consent and the accused did not believe that there was consent to the sexual activity: section 8 of the Act.
It is important to note that the belief in consent is a defence raised to the offence of rape. However, the belief must be objectively reasonable: section 6(1) of the Act. In determining whether the belief was reasonable, the Court will examine all of the circumstances surrounding the consent, including what steps the accused had taken to determine whether consent was given: section 6(2) of the Act. However, the belief in consent will not be accepted as a defence to rape where the accused’s belief was as a result of his or her own intoxication, recklessness, or willful blindness or where the accused did not take reasonable steps to confirm that consent was given.
The statutory penalty for the offense of rape is imprisonment for life.
- Sexual Assault
According to section 4(1) of the Act, sexual assault is committed where the accused:
(a) 1. Touches another person in a sexual way;
2. Causes someone to touch the accused’s body;
3. Causes someone to touch a third party in a sexual way or
4. Indecently assaults someone.
(b) the complainant does not consent to the touching or the act, which would constitute indecent assault and
(c) The accused does not reasonably believe that the complainant consents.
(2) Sections 7 and 8 (relating to presumptions as to consent) apply to an offence under this section.
The elements which must be established beyond any reasonable doubt in order for the
accused to be found guilty, namely:
- Sexual Touching: Touching includes touching of the genitals or other body parts with some part of the accused’s body, directly or indirectly with any other thing or through something, such as through the person’s clothes, in a sexual manner. This touching may include fondling and groping.
- Person: The touching can be by the accused of the complainant’s body, or where the complainant is forced to touch the accused in a sexual manner, or where the accused forces the complainant to touch a third party.
- Lack of Consent: Consent is necessary for any sexual activity. The definition of consent under the offence of rape as well as the presumptions as prescribed in sections 7 and 8 of the Act as explained above, are applicable to the offence of sexual assault.
- Belief in Consent: Belief in consent is also a defence to sexual assault. For the accused to raise this defence, he or she must have reasonably believed that the person complaining of the offence consented to the sexual activity. Section 6 of the Act, as described above, is also applicable to the offence of sexual assault.
The penalty for sexual assault, if the accused is tried in the Magistrate’s Court and found to be guilty of the offence, is imprisonment for five (5) years, and if tried on indictment in the High Court, imprisonment for ten (10) years.
Conclusion In Part 2 of this series, we shall closely examine sexual offences against a child.
This is a powerful article. Anxiously awaiting Part 2 of this series.