The long promised Sexual Offences Bill which proposes a comprehensive overhaul of the current archaic law was tabled in the National Assembly yesterday following sustained calls for urgent reform of the legislation.
The bill, which was read in the name of Human Services Minister Priya Manickchand, was sent to a select committee for further deliberations. Its tabling comes after lengthy countrywide discussions on the subject especially regarding the current system’s inability to offer adequate protection to women and children who are victims of sexual abuse.
Escalating violence, including sexual violence, against women and children and the absence of the bill on the parliamentary agenda had prompted a sustained protest by the Coalition to Stamp out Sexual Violence Against Children which routinely picketed the Office of the President. The body accused the administration of “foot-dragging” on important legislation and it continuously pressed for the bill to be placed high on the “political agenda”.
Prior to the coalition’s initiative, the Guyana Human Rights Association had made significant contributions to the sexual reform debate, specifically outlining recommendations with regard to the offence of rape.
The new bill proposes wide-ranging reform of the legislation on sexual violence currently on the books and proposes to change quite a few of them, and at the same time definitively spells out the rights of victims of sexual abuse — raising much needed awareness. It mentions too the establishment of a National Task Force for Prevention of Sexual Violence to address implementation.
One of the more critical aspects of the bill is that it proposes making the criminal offence of rape gender-neutral to include sexual assault on boys and men. The bill is also seeking to bring the offence of rape in line with reform around the world and is therefore maximizing protection by widening the definition.
Section 3 of the proposed legislation says that a person commits the offence of rape if that person (the accused) intentionally engages in sexual penetration with another person (the complainant) or intentionally causes the complainant to engage in sexual penetration with a third person. It is also rape if the complainant does not consent to the penetration, and if the accused does not reasonably believe that the complainant consents.
This new definition caters for any offensive activity as it defines penetration as “any intrusion however slight and for however short a time, of any part of a person’s body or of any object into the vagina or anus of another person, and any contact, however slight, between the mouth of one person and the genitals or anus of another, including but not limited to sexual intercourse…”
The bill also proposes to amend the law with respect to rape and marriage. Section 37 specifically states that a marital or other relationship, previous or existing, is not a defence to a charge of any offence under the bill. Currently, a husband could not be found guilty or raping his wife, but this new bill seeks to change that.
Also, the bill abolishes the presumption that a male under 14 years of age is incapable of sexual intercourse as stated in Section 38.
The issue of consent is also being considered with the bill saying that consent cannot be inferred by reason of sexual arousal and that belief in consent is not a defence. As regards children and vulnerable adults, “unless expressly stated in any of the offences, it is not necessary for the prosecution to prove that the complainant did not consent”.
Positions of trust
The bill creates new offences relating to positions of trust specifically targeting children and persons with mental disorders. Sections 25-27 deal with persons in position of trust regarding certain vulnerable adults–persons with mental disorders.
The new offence of breach of relationship of care is with a view to prohibiting sexual activity between those in position of authority care relationships or in custodial contexts such as hospitals, care homes, police stations and prisons and the people they look after. The aim is to protect vulnerable adults from exploitative behavior cased by familiarity with the carer.
Section 19 addresses abuse of a position of trust with regard to children and includes carers in children’s homes and orphanages as well as social workers, probation officers, coaches, instructors, baby sitters, child minders and others.
The offence of an abuse of a position of trust carries a fine of $1 million and imprisonment for five years on summary conviction; on conviction of indictment, imprisonment is for ten years. The penalty is the same for persons who are found guilty of engaging, causing or inciting sexual activity with a person with a mental disorder.
The bill states that the offence ‘sex with an adult relative’ will cover sexual activity between certain adult blood relatives — parent, child, sibling, grandparent and grandchild.
Further, Sections 28-31 include a gender-neutral offence of indecent exposure relating to the indecent exposure of both male and female genitalia in circumstances where the accused intended to cause or where it was reasonably likely that the behaviour would cause alarm or distress.
Special measures
The bill introduces special measures to assist complainants to give evidence in sexual abuse cases when they appear in court, and judges will be obliged to order the use or one or more of the measures in all sexual offence cases unless the complainant requests to give evidence unassisted. One of the measures includes a screen or other arrangement preventing the accused from seeing the complainant.
Other measures in Sections 58, 59 and 60, include allowing children to give evidence by video-link through an intermediary, use of anatomically correct dolls, allowing written evidence where the child is prevented from testifying, and allowing hearsay evidence to build up a circumstantial case where the child cannot testify.
Section 61 allows the complainant to make a “victim impact statement” at the hearing of a bail application, as well as after conviction but before sentence and the court is obliged to take this into consideration when making a decision in those circumstances.
The bill also proposes an end to the practice of accused persons cross-examining complainants. According to the explanatory memorandum, “Recognising the trauma caused to victims who are forced to face the questions from the person those victims claim have caused them pain and injury, clauses 62 to 65 disallow the accused from cross-examining in person the victim of an offence charged under this Act as well as the witnesses who were at the time of the commission of the offence, children”.
Police investigations
Amid continuing concerns about the approach of the Guyana Police Force to reports of sexual violence the bill seeks to make it mandatory for the police, where a report of sexual violence is made, to investigate the matter promptly and either charge the accused or forward the file to the Director of Public Prosecutions within three months.
Section 41 (3) of the bill states that failure by the police to comply constitutes neglect of duty by the commander of the division of the force in which the report was made and he/she shall be liable to answer disciplinary charges.
Section 42 (1) and (2) speaks of the complainants and the new rights afforded to them.
“Where a report is made of an offence under this Act, at no point during the investigation shall the complainant be required to recount the complaint or any part thereof, in the presence of the accused. The complainant shall not be required to view or be in the presence of any person referred to in the complaint as having perpetrated any offence under this act save for the purposes of an identification parade…”
It states that such an ID parade could only be conducted by way of audio visual link, a two-way mirror or any other manner sensitive to the complainant’s well-being.
Bail
As it relates to bail the law is reversing the policy of the court considering certain factors before bail is granted where the charge is a child sex offence or where the accused had a previous conviction of any sexual offence stating that “it shall be the accused who has to satisfy the court that it is in the interest of justice for him to be granted bail”.
