“MONSTROUS”…“SICKENING”…“HORRIFYING”…“ABOMINABLE… “DETESTABLE” are just a few of the words expressed by many after reading the news recently.
“Man, 21, gets 10 years for sexual activity with underage girl”: The Guyana Chronicle, April 27, 2024.
“Mason gets life sentence for raping girl, 9”: News Room, April 26, 2024.
It is heartbreaking to hear that someone has been raped or sexually abused, but it is especially disturbing to hear that a child suffered through such a traumatic and life-changing event, sometimes more than once.
In Part 1 of this series, we closely examined sexual offences in Guyana. It is well known that not only adults are affected by sexual offences in Guyana but children as well. As such, we shall examine some of the sexual offences against children and possible defences as prescribed in sections 10 to 15 of the Sexual Offences Act, Chapter 8:03. Offences Against Children.
- Rape of a child under 16 years
According to section 10(1) of the Act, the offence of rape of a child under the age of sixteen (16) years occurs when the accused engages in sexual penetration with the child or causes the child to engage in sexual penetration with another person.
The maximum penalty for such an offence is imprisonment for life. In April 2024, Justice Sandil Kissoon sentenced a 40-year-old mason to life imprisonment after he was found guilty of raping a nine-year-old child in 2022. In imposing the sentence on Orland Roberts, Justice Kissoon described the convicted man’s actions as “vile” and “abominable.”
The witnesses stated that the accused, on July 4, 2022, sexually assaulted the child while she was asleep at her home. The court heard testimony from both the victim, who was brutally awakened during the attack, and her younger sister, who witnessed the assault. The honourable judge stated that the rape of a child is an unforgivable crime and branded Roberts as a “predator.” He used the opportunity to reaffirm the judiciary’s unwavering commitment to combating such heinous acts. The judge further ordered that the accused spend a maximum of 18 years in prison before he is eligible for parole.
The offence of rape of a child under 16 has two elements that must be proved for the accused to be found guilty, namely: –
- Sexual penetration
We have explored what amounts to sexual penetration in Part 1 when examining the elements of rape. The elements are the same for the present offence; the only difference is that instead of the victim being an adult, the victim is a child under sixteen (16) years old.
However, for ease of reference, sexual penetration 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 of time. It is a continuing act from entry to withdrawal. It includes but is not limited to oral – fellatio and cunnilingus, vaginal–sexual intercourse, female-to-female genital contact, and anal intercourse.
- Children under 16 years of age
This offence relates to males and females under sixteen (16) years old. It is no defence that, at the time of penetration, the accused believed the complainant was sixteen years of age or above, as per section 10(2). As such, once the complainant is fifteen years or younger, despite the complainant possibly misrepresenting their age or they look mature for their age, once it is a fact that the child is under sixteen (16) years, it is rape.
- Absence of a defence
The only defence that may absolve an accused of liability in such a case is the close-in-age defence as outlined in sections 14 and 15 of the Act. This defence will be discussed later in this Article.
It is important to note, unlike the offence of rape (of an adult), the elements of consent and belief in consent are irrelevant where it concerns the rape of a child under 16 years: section 9 of the Act. This is the case because a child under the age of sixteen (16) years cannot give consent to any form of sexual activity. Therefore, the accused cannot allege that or attempt to rely on the complainant’s consent to any sexual activity.
Notably, the inability of an accused to raise the defence of consent or belief in consent applies to all child sex offences dealt with under the Act unless otherwise stated.
- Sexual Activity with a child under sixteen (16) years
According to section 11 of the Act, the offence is committed where the accused engages in sexual activity with the child complainant, causes the child to engage in such activity with a third person, or causes the child to perform such an act, including masturbation. The offence has two elements that must be proved for the accused to be found guilty, namely:
- Sexual Activity
The interpretation section of the Act defines sexual activity to include touching. As we have learned, touching includes the 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. Generally, a sexual activity under this section speaks to such forms of sexual acts that do not include sexual penetration.
- Children under 16 years of age
This offence relates to males and females under sixteen (16) years old.
It is also no defence that, at the time of the sexual activity, the accused believed the complainant was sixteen years of age or above – section 11(2).
- Absence of a defence
As prescribed in sections 14 and 15 of the Act, the close-in-age defense may be raised to absolve an accused of liability.
Notably, this offence attracts the penalty of five (5) years imprisonment on summary conviction and ten (10) years imprisonment on indictment.
- Causing a child under 16 years to watch a sexual act
This offence is committed where an accused causes a child under sixteen (16) years to watch the accused or a third person engaging in sexual activity or where he/she is made to look at a person engaging in such activity: section 12(1).
According to section 12(3), an accused shall be guilty of this offence where there is a lack of justifiable reason for the actions of the accused. Justifiable reason includes where the act was done for:
(a) Sexual education;
(b) Prevention of sexually transmitted infection (STI) and pregnancy; or
(c) Protection of the child’s physical safety and emotional well-being through the giving of advice.
However, if the act was committed for sexual gratification or the encouraging of sexual activity, then it shall amount to the offence of causing a child under sixteen (16) years to watch a sexual act.
In the absence of justifiable reasons, the close-in-age defence, where applicable, may be raised to absolve the accused of liability.
The penalty for such an offence summarily is a fine of one million dollars and imprisonment for five (5) years. The accused shall be imprisoned for ten (10) years on indictment.
- Meeting a child under 16 years following sexual grooming
Sexual grooming of a child refers to the action of an adult building a relationship of trust with a child with the intent of forming a sexual relationship, abusing or controlling said child in the future.
According to section 13(1) of the Act, there are three elements to the commission of the offence of meeting a child under sixteen (16) years following sexual grooming, namely: –
- Meeting with the child or traveling with the intent of meeting the child after meeting or communicating with said child on two (2) prior occasions;
- At the time of the meeting, the accused has the intention to do some sexual activity that amounts to an offence under the Act, either during or after the meeting and
- The child is under fifteen years or younger, and the accused does not reasonably believe the child to be sixteen (16) years or above.
The close-in-age defence may be raised to absolve the accused of liability for the offence.
The penalty for such an offence is a fine of one million dollars and imprisonment for five (5) years on summary conviction, and on indictment, the accused shall be liable to imprisonment for ten (10) years.
- Close-in-Age Defence
For the offences of rape of a child under 16 years (s10), sexual activity with a child under 16 years (s11), causing a child under 16 years to watch a sexual act (s12), and meeting a child under 16 years following sexual grooming (s13), where applicable, the close in age defence may be raised by the accused.
- Complainant’s age 12 to 14 – section 14 of the Act
Where the complainant is twelve (12) years or older but less than fourteen (14) years of age, consent may be considered a defence to the offence where:
(a) The accused is less than two (2) years older than the complainant; and
(b) The accused is not in a position of trust towards the child, there is a relationship of dependency, and the accused is not in an exploitative relationship with the complainant.
- Complainant’s age 14 to 16 – section 15 of the Act
Where the complainant is fourteen (14) years or older but less than sixteen (16) years of age, consent may be considered a defence to the offence where:
(a) The accused is less than four (4) years older than the complainant; and
(b) The accused is not in a position of trust towards the child, there is a relationship of dependency, and the accused is not in an exploitative relationship with the complainant.
Where the complainant and the accused are close in age, as stipulated in sections 14 and 15 of the Act, the consent of the complainant to the sexual activity can be used as a defence to the offences prescribed in sections 10 to 13.
Conclusion The offences dealt with above do not form a complete list of child sexual offences prescribed in the Act. In Part 3 of this series on the Sexual Offences Act, we shall examine the remaining child sex offences as detailed in sections 16 to 21 of the Act and under the Cyber Crime Act 2018.
