The proposed sexual offences legislation is not free of faults

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