The Guyana Human Rights Association (GHRA) has come out strongly against Chief Justice Ian Chang’s recent dismissal of the Director of Public Prosecutions’ (DPP) advice to charge Commissioner of Police Henry Greene with rape calling the ruling “profoundly disturbing.”
“It is profoundly disturbing to the GHRA that an opportunity for a meaningful test of this country’s commitment to both the protection of females from sexual offences and the principle that no one is above the law, should be short-circuited by such specious reasoning,” the organization said in a statement. It said that Justice Chang’s platitudes about ‘consent’ in dismissing the advice as ‘irrational,’ “demonstrate that the criminal justice establishment is far behind the general public in its understanding of sexual offences.”
The GHRA said that government’s decision to invite impartial investigators from Jamaica reflected a clearer appreciation of the complexity of charging the Commissioner of Police than Justice Chang. It said that the question will now be asked as to where the judgment leaves victims of sexual offences.
“While women have long been reluctant to approach the police with sexual offences complaints, (a factor the new Sexual Offences Act was intended to address), the logic of this judgment suggests that they would be well advised to think twice about seeking redress of any kind from the police,” the GHRA said.”With the judicial process so out of step with a modern understanding of sexual offences the doors of the court are also closing on victims of sexual assault,” the statement said.
The GHRA expressed hope that the same appreciation that prompted the Government to bring in independent investigators will now trigger the prompt dismissal of Greene.
In examining the ruling, the association said that the circumstances of Greene arguing consent in a case of this nature are, prima facie, extremely difficult by virtue of the power and status of his office. It said that the parallel can be drawn with correctional officials claiming consent in sexual activity with prisoners under their power and control. “For this reason, most modern jurisdictions consider it is almost axiomatic that sexual activity between police (and prison) officers and persons under their power and influence cannot be consensual,” the association said.
The association said that Justice Chang seems unaware of Section 7(2)(k) of the Sexual Offences Act which rules out a presumption of consent if sexual activity took place in circumstances of “abuse of a position of power or authority to the extent that the complainant could not resist at the time of the sexual activity.”
“In light of these considerations, what is so “irrational” about the charges,” the association questioned.
It said that rather than determine whether coercion rooted in the status of the defender was present, the judge, according to reports in the media, focused on the victim’s behaviour both while accompanying the commissioner into the hotel and later buying food on Regent Street with him.
“He perhaps needs reminding that ‘consent and belief in consent cannot be inferred by (a) reason of silence or lack of physical resistance on the part of the complainant’”, the association said, quoting the Sexual Offences Act.
Further, the GHRA declared that Justice Chang’s analysis of ‘consent’ reveals “precisely the kind of judicial chauvinism that provoked the reform of sexual offences legislation in the first place. ”Rather than seize the opportunity to demonstrate that the law is no respecter of status, Justice Chang’s judgment can instead embolden rich and powerful sexual predators that they have nothing to fear from our judicial system, the statement said.
Justice Chang in his ruling said that the DPP’s decision to charge Greene with rape was ‘irrational’, because the evidence did not present a realistic prospect of conviction but the GHRA said that this seems faulty procedurally and substantively. “Is this not a matter for the PI [Preliminary Inquiry] and subsequently the jury, not a judge in Chambers,” the GHRA questioned.
It said that if the term ‘irrational’ is to be applied to the DPP’s decision to charge, it must also apply to a much wider range of people, starting with the Jamaican investigators on whose submissions the DPP presumably relied on and to all the people now indignant over the dismissal of the charges. “Public indignation over this inexplicable intervention in the judicial process is well-founded and predictable (as a consequence of) a decade of public education around the age of consent, sexual violence against women and an appalling conviction rate in rape cases,” the GHRA said.
The GHRA is of the opinion that a parallel can be drawn with the case currently before the US Supreme Court in which conservative judges are being encouraged to overthrow President Obama’s health reforms. “Justice Chang’s judgment challenges implementation of a modern sexual offences Act on grounds that are ideological and social rather than legal – what constitutes appropriate behaviour in consenting women – and to this extent undermines democratic culture and progress,” the release said.
GHRA said it hopes that the same appreciation that prompted the government to bring independent investigators will now trigger the prompt dismissal of the Commissioner of Police.