Almost a decade since the enactment of the sexual offences legislation, which expanded the traditional definition of rape, the judiciary is still encountering a lack of awareness among the citizenry.
The commencement of each criminal session in the three counties—Demerara, Essequibo and Berbice—consistently sees an overwhelming number of sexual offence cases listed for hearing.
The opening of the June assizes, currently underway for the Georgetown High Court alone, which falls under Demerara, has a listing of 140 cases to be presented for trial. And while the Sexual Offences Court, which is tasked with hearing these matters, hardly gets through a quarter of those cases, since the launch of this almost two-year-old specialist court, far more cases have been dispensed with than before its advent. In fact, the court sees the conclusion of an average of at least two cases per week, with most ending with convictions.
However, despite the work of the court, the state’s higher conviction rate and the often hefty sentences imposed for such crimes, rape and other sexual offences are still being perpetrated with disturbing consistency.
A part of the problem, at least from the perspective of the judiciary, is the lack of awareness about the elements that constitute some of the offences, which requires public education so that more persons are fully aware of the implications of their actions.
This was a suggestion recently advanced by Justice Jo-Ann Barlow at a media sensitisation forum, where she provided an overview of the 2010 Sexual Offences Act. She said the treatment of sexual offences and persons connected thereto—whether survivors or perpetrators—cannot be dealt with by investigators and the court alone, but is a task which must include the wider community. Against this background, she said that the media, which can be seen as a bridge between the courts and the wider community, plays a vital role in the process.
Expansive definition
Justice Barlow, one of the judges who presides in the Sexual Offences Court, had indicated at the forum that there are instances where the court experiences challenges in explaining what, according to law, amounts to rape.
For one, the judge said that accused persons and even jurors sometimes have difficulty understanding that rape does not only consist of non-consensual penile-vaginal penetration. This can result in an accused holding to the misguided contention that he/she never committed an offence to begin with and a jury returning a defective verdict.
While this was the case before 2010, the Sexual Offences Act provides a more expansive definition as to what amounts to rape and who can commit rape.
It states, “A person (“the accused”) commits the offence of rape if-(a) the accused-(i) engages in sexual penetration with another person (“the complainant”); or (ii) causes the complainant to engage in sexual penetration with a third Person; (b) the complainant does not consent to the penetration; and (c) the accused does not reasonably believe that the complainant consents.”
Penetration, under the Act, means, “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 and for however short a time, between the mouth of one person and the genitals or anus of another, including but not limited to sexual intercourse, cunnilingus, fellatio, anal intercourse and female to female genital contact.”
During her presentation, Justice Barlow revealed that the offence of rape has created “a bit of a stir” due to the attendant drastic changes under the Act.
On this point, she explained that under the old law (prior to the 2010 amendments), rape simply meant “unlawfully placing a penis into a vagina,” while adding that nothing more would have amounted to rape under the old legislation.
It was for this reason that the offence was seen as one which could only have been committed by a man and the victim, therefore, could only have been a member of the opposite sex.
Under the present legislation, however, she said that if there is sexual penetration of the “vagina or anus” of a person by any part of another person’s body, or by any object, “then the offence of rape would have been committed.”
As a result, the law now recognises that the offence can be committed by a man or woman.
‘Light years’
Justice Barlow underscored the difficulty, which she said judges of the Sexual Offences Court encounter with juries, as some persons are still “light years” away from understanding this concept.
She said that this is so because persons believe “when we say rape, there must be contact with the penis;” while adding, “and when they don’t hear about penis entering the vagina, jurors look at us as judges when we are directing them, as if we are speaking a foreign language.”
This, Justice Barlow said, is where education becomes important as people need to know “that rape is wider than what we usually understood it to be.”
Justice Barlow added that judges have also realised that there exists a problem in trying to convince a lot of jurors that what is commonly referred to as oral sex now amounts to rape if it is done in an unlawful manner.
The offence of rape carries a maximum sentence of life imprisonment. Section (3) of the Act states, “A person who commits the offence of rape is liable, on conviction on indictment to imprisonment for life.”
It is noteworthy that in accordance with the Sexual Offences Act, a person who engages in sexual intercourse or any sex act with a person under the age of 16 has committed the offence of rape/sexual activity and it is immaterial whether the accused genuinely believed the person to have been 16 years and above.
Section 10 (1) of the Act states, “A person (“the accused”) commits the offence of rape of a child under sixteen years of age (“the complainant”) if the accused – (a) engages in sexual penetration with the complainant or (b) causes the complainant to engage in sexual penetration with a third party.”
Subsection (2) further goes on to add, “It is irrelevant whether at the time of the penetration the accused believed the complainant to be sixteen years of age and over.”
There have been cases before the courts, where persons convicted of such offences ardently sought to argue in their misguided defence that they genuinely believed the complainant to have been 16 and above, or that the complainant would have told them that they are 16 or above.
The liability under this section is strict because of what the statute specifically mandates—breach of which amounts to statutory rape. The law deems a person under the age of 16 incapable of consenting to sexual intercourse or any form of sexual activity.
An accused person cannot, therefore, raise as a defence either, that such a person would have given consent, since such a person cannot give consent according to the law.
