The proposed sexual offences legislation is not free of faults

BY Staff
Published: November 20, 2008 in Letters

Dear Editor,
Among the many good initiatives for which this administration would be remembered we have to note the updating of the laws relating to Amerindians, and now, the modernisation of the sexual offences legislation.

The existing situation is frightening. Half of the young women in the Caribbean claim to have had their sexual initiation through an act of force. And in Guyana, a rape probably occurs every six hours, if we are to consider the statistics in a study quoted in the Ministry of Human Services ‘Stamp it Out’ consultation paper.

So, we are terrible people. Guyanese men are beating, raping and otherwise violating their women − even the weak, the drunk, the frightened, the half-asleep, female idiots, babes, young relatives, little boys, the drugged, Amerindian maidens, their own wives… And we are committing these atrocities with little fear of arrest or punishment. From the 6500 rapes estimated to have been committed in the 1460 days between 2000 and 2004 only 341 charges and nine convictions resulted. The proposed changes to the sexual offences laws take these circumstances into account and seek to increase the chances of arrest and conviction as a way of protecting the numberless victims in the jungle out there. Sentences will be mostly jail terms, with monetary compensation for the victim in some cases.

Bail will be granted only in exceptional circumstances as the planned special sexual offences court starts to work. This is a proposal that needs to be carefully weighed against the presumption of innocence.

Then, the definition of rape would be “extended.” It suffices that the victim admit to feeling coerced for the act to be deemed criminal. And even if no resistance is put up and no force is actually used “coercive circumstances,” a subjective “mental element” will tip the scales of justice against the offender. This is dangerous and we have to hope that our police, judges and juries will be careful in the weight they give it. But in fact it takes into account the emotional conditions surrounding, in some cases, acts of violation. Factors which render consent impossible now include sleep or unconsciousness, intoxication, force or threat not only to the victim but to a third party, learning disability in the case of the victim, falsely pretending to be who you are not, etc. A wide range of highly subjective conditions. How drunk, for example, or gullible, does the victim need to be? As the age as well as intelligence of the victim would need to be previously and accurately determined, the offender, supposing he is able to judge, is unlikely to be given the benefit of doubt if he claims the victim looked like 18 and seemed to have a normal IQ. In fact this provision is there to protect the vulnerable handicapped.

The proposed legislation is particularly delicate when it comes to divining the intentions of the accused. It is possible too be charged with “trespassing with the intention” of committing a sexual offence. This may be hard to prove. And consent by the victim would be deemed fraudulently extracted if the offender pretends to be someone else. This too is an area that has to be carefully considered.

There are aspects of this proposed legislation that require careful attention. Changes in the legal regime or to specific areas of legislation cannot simply be viewed as a response to the crises of the time. They are, or become, instruments of social engineering. Determining the ways relationships are viewed and conducted.

Proposals that touch personal and family law and some criminal areas are especially important in a country such as ours for the reason that they impact the multiple social and belief systems in ways that are later difficult to modify. Bearing these ponderous conclusions in mind I requested and quickly received a copy of the ‘Stamp It Out’ papers relating to divorce and sexual offences. Minister Priya Manikchand merits the esteem she has earned for the way she handles her portfolio. And the legal minds that have in the past and present dealt with these reforms, including of course Justice Desiree Bernard, need to be commended.
The reforms are necessary and have, from the references in the papers, already been enacted in many Commonwealth jurisdictions. Much that is archaic and incoherent will be excised from the body of law and contemporary technical and cultural factors have been taken into account.

The proposed reform is not, to my mind free of faults nor is it free of the influence of a high level of concern that has come to surround the judicial treatment of rape and other sexual offences. One of the major problems with the proposal is precisely the extension of the definition of rape and other sexual offences, the maximum sentences that sometimes go to life imprisonment and the question of consent.
Yours faithfully,
Abu Bakr

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5 Comments

M. Xiu Quan-Balgobind-Hackett says:

November 20, 2008 at 6:33 am

Which legislation, man-made or supposedly god-made, is perfect? At least this one is better than the old useless one. But as you say, it may need some fine-tuning to minimize the loopholes. However, it’s better to free the slaves than to keep them in chains, even if one day one of them might kick your *** or even become president.

Reply
- bakr says:
  
  November 20, 2008 at 9:22 am
  
  Funny, MXQB.
  
  In fact I did a later version of this letter in which I mentioned three other things.
  
  1) Little girls, here defined as any female under 16, can give and receive consent to and from little boys. The penalty could be counseling and whether to lay charges etc is at the discretion of the police DPP etc. On the other hand the age of discretion for other serious crimes is set at 10. The assumption seems to be that judgement comes later in matters of the flesh and that a certain adoloescent playing around is to be tolerated.
  
  2) The whole things hinges on CONSENT, and not any of the absolutes that earlerreigned. For example what is called in law “buggery” is to be punished if the victim fails to give consent. If he does then the matter , we are promised, will be dealt with later. Prostitution, pornography and other controversies are also to be dealt with later.
  
  3) As it will be, you look at yuh wife li’l hard, and it can be observed as threatening behaviour. You are hanging round a wedding house with no demonstrable relationship or family ties with the celebrants and you are dragged off for loitering or trespassing with intent. Also.There is apparently no statute of limitations specific to these crimes. This legislation should not take on the character of “The revenge of the battered women.” Arrest, confinement in the Black Hole of the Brickdam lockups, five years in remand, only to be proven innocent as the victim confesses to having really said “yes” but having changed mind at sunrise after a bad dream. At this real full abstinence is the only protection.
DreamAtlanta says:

November 20, 2008 at 10:26 am

One of the reasons why rape convictions are not taking place in Guyana, is because there is no government DNA Lab. This is very crucial to convicting a rapist. Lab facilities whatever exist, is outdated and so are computer data bases. I have not read the whole article but sexual slavery inflicted on amerindians and gay people are rampant and probably hardly reported. Also our police Force do not know how to deal with rape victims. In addition to being raped the victims are left with therminal and chronic diseases such as Aids and Hepatitis.

Reply
- Evan Thomas says:
  
  November 20, 2008 at 11:09 am
  
  Very good point all around. This raises the question of whether views like these were taken on board. I am not sure whether there was any consultations or I prefer to say public engagement on this matter….consultation is but one form of public engagement.
  
  I think that there is need to allow for public engagement on these very contentious issues. In the future, the government of Guyana should get someone to check the web for a model process/best practice of public engagement. They can start with looking at the British Colombia Conversation on Health public engagement process….
bakr says:

November 20, 2008 at 3:00 pm

Evan,

I know that the Minister-Ministry is serious about consultation to the point of wanting to go only with consensual or majority views. They have had and will continue to have “public engagement” of one sort or the other. In addition and just as important, There needs to be a public education/public information programme in a phased way. First phase-Prior to public consultation so people will know and understand what the points of these changes will be. Public education and information during the consultations so that people will understand and participate in the procedure, and the same after the initial draft of the bill so that people will know what the new order implies.

Perhaps a policy impact study was done. Perhaps the stats were ventilated so we understood exactly for eg. the impact of case throughput on the justice system. Imagine they get to prosecuting 50% of alleged rapes, or 750 per year. That is two new cases of serious offences everyday in a new sexual offences court. How will the overburdened system cope. How probable are the stats with 1700 estimated cases of year in a population of our size with most victims falling in the adolescent age range. Are 5 or ten percent of our adolescents being raped every year. I would like to see the studies.

Normally, the public education /info should be done by an expert. The BarAssoc and others should participâte. The media should also. The model of governance we have did/does not lend itself to the development of these kinds of specialties and I don’t know whether there are people in Guyana qualified and experienced.

The question of cost should be minimised. As far as I know broadcast law in Guyana stipulated that the electronic media carry public service announcements free of charge. Voluntary input could be sought and had. In other coubntries NGO and benevolents would be welcome. Production and other costs can be managed. I know because I did this kind of public education/info program design in the past in another career.

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