In view of the recent ruling by the Chief Justice Ian Chang to dismiss charges of rape recommended by the DPP against the Commissioner of Police, Mr Henry Greene I, as a woman and child rights activist, would like to point out the following passages in the Sexual Offences Act 2010 which have significant relevance and which seem not to have attracted the consideration of the Chief Justice in his ruling:
In part IV of the SOA, Procedures at Court, # 52, Behaviours and reaction of complainant it says “Where on the trial of an accused person for an offence under this Act evidence is given or a question is asked of a witness about the behaviour or reaction of the complainant during or after the alleged offence the judge shall inform the jury that complainants of sexual offences display a wide range of responses, and that the absence of behaviour that they might expect a complainant of a sexual offence to display should not be taken as evidence that the offence charged did not take place.” It would appear that the Chief Justice did not take this into consideration during his ruling and even though this was not a trial it would seem to me, as a lay person and not a lawyer, that the law ought to be observed without fear or favour in all cases regardless of the position or status of the accused or complainant.
Further as regards rape and consent to sexual activity, the SOA, Part II, Offences, states
“(3) It is not a defence to a charge of rape that the accused reasonably believed that the complainant consented to the sexual activity that forms the subject matter of the charge, where- (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. 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.
“5. Consent and belief in consent cannot be inferred by – (a) reason of silence or lack of physical resistance on the part of the complainant;
(b) reason of sexual arousal including orgasm and ejaculation.
“6. (1) Where a defence of belief in consent is raised to the offence of rape or sexual assault, the belief must be objectively reasonable.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the accused has taken to ascertain whether the complainant or the third person consents.
“7. (1) If in any proceedings for an offence under section 3 or 4 it is proved that –
(a) the accused did the sexual activity;
(b) any of the circumstances specified in subsection (2) existed; and
(c) the accused knew that those circumstances existed,
the complainant is to be taken not to have consented to the sexual activity unless prima facie evidence is adduced to raise an issue as to whether the complainant consented, and the accused is to be taken not to have reasonably believed that the complainant consented unless prima facie evidence is adduced to raise an issue as to whether the accused reasonably believed it.
(2) The circumstances referred to in subsection (1) are that-
(a) any person was, at the time of the sexual activity or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against the complainant.”
The Chief Justice in his ruling would seem to have completely overlooked the SOA provisions on consent. The statement of the complainant which the Chief Justice used as a basis for his ruling indicated very clearly that the complainant on more than one occasion indicated her lack of consent. In addition in the complainant’s statement the Commissioner of Police, Henry Greene was said to have used his gun to threaten and coerce the complainant into sexual activity; this clearly under the SOA speaks to the issue of consent. There also seems to have been no equal balance applied as to the lack of prima facie evidence for consent to not have been given by the complainant. Rape as we should all know is sexual activity without consent where penetration
has occurred. Under the SOA 2012 there is also no requirement of corroboration for conviction of a sexual offence. The Chief Justice seems to have been quick to believe that because the hotel staff in their statements did not see or hear coercion that this did not occur.
The Guyana Human Rights Association in its 2005 report Without Conviction Sexual Violence Cases in The Guyana Justice Process had this to say: “…obstacles to effective delivery of justice pale in comparison to the challenge posed by the unreconstructed chauvinism of the legal culture in Guyana. The judicial process is an experience frequently as traumatic for the victim as the original sexual violence. Rape survivors are bewildered by the coldness, suspicion and humiliating treatment they must experience. Not only, therefore, are they unlikely to win their cases, they can expect to undergo a process of re-victimization. The major challenge, therefore, to improving the conviction rate for sexual violence crimes, is to create the conviction among those responsible for the administration of justice that sexual violence crimes are serious offences.” It was this report which prompted and ushered in the enactment of the new Sexual Offences Act 2010.
However to date the SOA is still not effectively implemented resulting in countless survivors of sexual offences being denied access to justice. To date there appears to be only one case which has made it through the system since the enactment of the SOA in 2010. This is indeed denial of justice. Red Thread, Help & Shelter and other organizations and concerned individuals in 2009-2010 mounted a picketing exercise for close to a year advocating the enactment of the SOA. This picketing exercise took place before and during the time when the Sexual Offences Bill was taken to a select committee where it remained for months on end. The upshot of all of this consultation and review was an Act enacted but one that obviously still needed revision.
As Guyana has a new National Assembly in place, I would hope that greater care and diligence would be taken to ensure that select committees are made up of qualified and informed persons so that we would not have a repeat of a situation in which a crucial law such as the SOA was enacted but cannot be implemented due to contradictions with constitutional rights.
Finally when will the inter-agency National Task Force for the Prevention of Sexual Violence be re-convened so they can carry out their mandate to develop and implement a national plan for the prevention of sexual violence as set out in the SOA, 2012.