Professional Documents
Culture Documents
Sexual Offences Act 2010
Sexual Offences Act 2010
(Guyana)
(h) the complainant was, at the time of the sexual activity, unable to
refuse because of or for a reason related to a mental disorder, and the
accused knew or could reasonably have been expected to know this; In
this case, the complainant would be unable to refuse if the he/she lacks
the capacity to choose whether to agree to the sexual activity (whether
because the complainant lacks sufficient understanding of the nature or
reasonably foreseeable consequences of what is being done, or for any
other reason), or the complainant is unable to communicate such a
choice to the accused;
(i) the complainant was otherwise incapable of consenting to
the sexual activity;
(j) agreement was expressed by the words or conduct of a
person other than the complainant;
(k)abuse of a position of power or authority to the extent that the
complainant could not resist at the time of the sexual activity;
(l) the complainant expressed at the time of the sexual
activity a lack of agreement to engage in the sexual activity;
(m)the complainant, having consented to engage in the
sexual activity, expressed, by words or conduct at the time of the
sexual activity, a lack of agreement to continue to engage in the sexual
activity.
Important Definitions – Presumptions
against CONSENT (s8)
Rape is committed if
(a) the accused –
(i) engages in sexual penetration with
another person ("the complainant");or
(ii) causes the complainant to engage
in sexual penetration with a third person;
(b) the complainant does not consent to
the penetration; and
(c) the accused does not reasonably believe that
the complainant consents.
Sexual assault (s4)
Sexual assault occurs where
(a) the accused -
(i) touches another person ("the complainant")
in a sexual way;
(ii) causes the complainant to touch the
accused in a sexual way;
(iii) causes the complainant to touch a third party
in a sexual way; or
(iv) otherwise indecently assaults the complainant
(b) the complainant does not consent to the touching
or the act which would constitutes indecent assault and
(c) the accused does not reasonably believe that the
complainant consents
An issue for consideration
There may be an issue here given the
definitions of sexual, touching and
penetration which could mean that a
person who would under the old law
be considered to have committed the
offence of indecent assault or under
this law sexual assault could
nevertheless be charged with rape.
Incest (by a new name) (children)
There are new provisions that deal with incest –
Sexual activity with a child family member (s
16, 17)
Since it is sexual activity this means that not only rape
would be included, so that what was traditionally incest by
sexual intercourse has been widened.
Family relationship for the purposes of these sections would include
relatives of the whole blood, half-blood, persons in or in former
common law relationships where the accused would have cared for,
trained or supervised the complainant, step parents whether through
legal or common law marriage, cousins step siblings and foster
parents.
There is no need to prove that there was a lack of consent and belief in
consent (whether reasonable or not) is not a defence.(s9)
The accused is to be taken to know or to be reasonably expected to
know of the relationship to the complainant unless there is prima facie
or some evidence to the contrary.
The offence is not committed if the accused married to the accused or
if the two persons had a sexual relationship prior to becoming relatives.
Incest (by a new name) (adults)
Sexual penetration with an adult family member (s 22) (This
seems to contemplate a more limited range of offence than is the case for children.)
The accused must be 16 yrs or over and the complainant 18 yrs r
over.
Family relationship for the purposes of this section would include
parents, grandparents, children, grandchildren, siblings of the
whole or half blood, uncles, aunts, nephews and nieces. The list
of relatives is narrower than for ‘incest’ with children.
There is no need to prove that there was a lack of consent and
belief in consent (whether reasonable or not) is not a defence.(s9)
The accused is to be taken to know or to be reasonably expected
to know of the relationship to the complainant unless there is
prima facie or some evidence to the contrary.
NEW OFFENCES
NEW OFFENCES
UNDER THE SOA
The SOA has created a
number of new
offences
Offences against children under
16 yrs (s 10,11,12,13)
Rape of a child under 16 yrs
Sexual activity with a child under 16 yrs
Causing a child under 16 yrs to watch sexual act including an image of
sexual activity
Meeting a child under 16 yrs following sexual grooming
(There is no definition of sexual grooming in the Act.) (s13) There is a definition
online which states that ‘grooming’ is establishing a predatory relationship: the
developing of the trust of a young person or his or her family in order to engage
in illegal sexual conduct; "Internet grooming"
Content above provided by Encarta® World English Dictionary [North American Edition] © & (P) 2009
Microsoft Corporation. All rights reserved. Developed for Microsoft by Bloomsbury Publishing Plc.
NB that the definition of child is gender neutral and so now applies to both
girls and boys.
Defences (s 14,15)
There are two defences which appear to take into
consideration teenage sexual activity.
They provide that where an accused is charged in respect of a
complainant who is between 12 – 14 yrs, it is a defence that
the complainant consented to the activity if the accused is less
than two years older than the complainant and the accused
was not in a position of trust or authority, or in a relationship
of dependency with the complainant or in a relationship that is
exploitative of the complainant. (s14)
Similarly, where a complainant is between 14 – 16 yrs it is a
defence that the complainant consented to the activity if the
accused is less than four yrs older than the complainant and is
not in a position of trust or authority, or in a relationship of
dependency with the complainant or in a relationship that is
exploitative of the complainant. (s15)
Sexual activity with child
abusing a position of trust (s18)
This offence would be committed if
(i) the accused engages in sexual activity with the
complainant;
(ii) causes the complainant to engage in sexual
activity with a third party; or
(iii) causes the complainant to perform sexual acts
including causing the complainant to masturbate; and
the accused is in a position of trust in relation to the
complainant, and
the accused knows or could reasonably be expected to know of
the circumstances by virtue of which the accused is in a
position of trust in relation to the complainant.
There is no need to prove that there was a lack of consent and
belief in consent (whether reasonable or not) is not a defence.
What is a position of trust? (ss
18,19)
A position of trust would include cases where the accused
(1) looks after the complainant in an institution by virtue of a
Court order
(2) looks after the complainant in an institution such as a
hospital, independent clinic, care home, residential home or
private hospital, community home, voluntary home, children’s
home or orphanage
(3) looks after the complainant in a educational institution
whether as a teacher on in another role where the accused is
not a student
(4) the accused is the guardian of the complainant or is the legal
or reputed spouse of one of the complainant’s parents or
guardians
(5) the accused is a social worker, probation officer, coach,
instructor, minister of religion, babysitter, child-minder or has a
welfare position in relation to the complainant, and has regular
unsupervised contact with the complainant.
Obstruction by person in a
position of trust (s 20)
It would be an offence for a person to
obstruct the prosecution of that
person if he/she prevents a child from
giving a statement to the police,
giving evidence under the paper
committal proceedings or testifying in
relation to this offence of sexual
activity with a child abusing a position
of trust.
Arranging/facilitating
commission of a child sex
offence (s21)
This offence is committed when an accused could be charged
if he/she facilitates the commission of any of the child sex
offences outlined whether committed by the said accused or
by any one else in any part of the world. A person would not
be guilty of this offence if the person acts for the protection
of a child if the person acts for the purpose of -
(a) protecting the child from sexually transmitted
infection;
(b) protecting the physical safety of the child;
(c) preventing the child from becoming pregnant; or
(d) promoting the child's emotional well-being by the
giving of advice, or any educational activity,
and not for the purpose of obtaining sexual gratification or for
the purpose of causing or encouraging the activity constituting
the offence or the child's participation in it.
There is no need to prove that there was a lack of consent and
belief in consent (whether reasonable or not) is not a defence.
Sexual offences against
persons with mental disorders
(ss 23,24)
There are a number of offences where it would be unlawful to have
sexual activity with a person with a mental disorder. These include
(1) obtaining sexual activity with a person with a mental disorder by
inducement, threat or deception
(2) causing a person with a mental disorder to watch a sexual act by
inducement, threat or deception
There is no need to prove that there was a lack of consent and belief in
consent (whether reasonable or not) is not a defence.
A person would not be guilty of these offences -
(1) if the complainant is over 18 yrs and the accused and the complainant
are lawfully married or there existed a prior sexual relationship between the
two or the accused acted for the purpose of
(a) protecting the complainant from a sexually transmitted
infection;
(b) protecting the physical safety of the complainant;
(c) preventing the complainant from becoming pregnant; or
(d) promoting the complainant's emotional well-being by the giving
of advice,
and not for the purpose of obtaining sexual gratification or for the purpose
of causing or encouraging the activity constituting the offence or the
complainant's participation in it.
Sexual offences committed by
care worker against a person
with mental disorder (ss 25,26)
A care worker would be guilty of an offence if he/she engages in,
causes or incites sexual activity with a person with a
mental disorder. Similarly, a care worker commits an offence if
he/she causes a person with a mental disorder to watch a
sexual act or look at an image of any sexual activity.
A care worker would not be guilty of these offences -
(1) if the complainant is over 18 yrs and the accused and the
complainant are lawfully married or there existed a prior sexual
relationship between the two or the accused acted for the purpose of
(a) protecting the complainant from a sexually transmitted
infection;
(b) protecting the physical safety of the complainant;
(c) preventing the complainant from becoming pregnant; or
(d)promoting the complainant's emotional well-being by the giving
of advice,
and not for the purpose of obtaining sexual gratification or for the
purpose of causing or encouraging the activity constituting the offence
or the complainant's participation in it.
Who is a care worker (s27)
Committing any offence with intent to commit a sexual offence e.g. robbery
with intent to commit rape, kidnapping with intent to commit rape or false
imprisonment with intent to commit rape (s33)
Trespass with intent to commit a sexual offence can also occur where a person
enters premises as a trespasser i.e. without permission and commits a sexual
offence. (s34)
If the child cannot write, the child’s mark or thumb print can be placed on the
statement, which must include a declaration by the person who wrote the
statement on behalf of the child, that it was read over to the child who appeared
to understand it and agreed to it.
There will be cases where these requirements for a signed statement cannot be
met, and where a child, especially a small children, would not be able to agree
that they understood that was read to them. As such, their statements would not
be admissible at the trial. These matters will have to be addressed in separate
hearings by a trial judge.
There is a requirement that they sign their statements, and as in the case of
a person who cannot read or write there is a requirement that the person
who takes the statement must include a declaration that they read the
statement to the child who appeared to understand its contents and agreed
to it.
There will be cases where the requirements for a signed statement cannot
be met, and where a child, especially where children are small, or person
would not be able to agree that they understood that was read to them. As
such, their statements would not be admissible in the paper committal
proceedings.
These are issues which the court would have to determine before admitting
the statements.
Roxane George, J
Help & Shelter Inc
December 11, 2010
Disclaimer: This presentation is not to be used as a substitute
for the Sexual Offences Act 2010 or for legal advice. It is to be
used as a guide only.