Breaking Down Sexual Offences
Introduction
Following our exploration of sections 24 and 25 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (SOA), we now turn our focus to another critical provision within the same legislative framework: Section 26. This section specifically addresses offences committed by care workers who cause a person with a mental disorder to watch a sexual act or view sexual images. This analysis will dissect the legal nuances of Section 26, emphasising how the law seeks to protect this category of vulnerable individuals from sexual exploitation within care settings.
Section 26(1) of the SOA outlines the offence by detailing the actions that are deemed criminal. Speci-fically, the offence occurs when a care worker, referred to as “the accused,” causes a person with a mental disorder, “the complainant,” to either watch a sexual act or view images depicting sexual activities (section 26 (1) (a)). The conditions under which this is considered an offence include: i) where the accused’s purpose is obtaining sexual gratification; ii) where the accused has knowledge of or is reasonably expected to know of the complainant’s mental disorder (section 26 (1) (b)); and iii) the accused’s involvement in the complainant’s care as defined in Section 27 of the Act (section 16 (1) (c)).
The burden to prove mental illness
Where a care worker is charged with causing a person with a mental disorder to watch a sexual act, once the prosecution proves that the complainant in fact has a mental illness, it is assumed that the accused knew or was reasonably expected to know of the mental illness. This is so because in these relationships, care workers are usually aware of this kind of information. As such, if an accused contends that s/he was not aware that the complainant had a mental disorder, or that s/he could not have reasonably been expected to know of the mental disorder, s/he must raise that issue and provide evidence in support of that contention.
The accused and the complainant
Under section 26, the accused is the care worker involved in the complainant’s care, while the complainant is an individual with a mental disorder. The legal framework underscores the vulnerability of the complainant due to their impaired capacity to understand or resist the sexual content, thus heightening the duty of care expected from the accused.
To ensure that persons who may not be considered care workers by the law are not caught by this provision, the SOA, under section 27, defines the circumstances in which a person is considered a care worker. Thus, care workers are persons who provide services in the following categories: i) care homes and other facilities; ii) healthcare services; and iii) direct care.
An accused will be defined as a care worker if the person being cared for (the complainant) lives in a care home or similar place, and the accused works there and meets them often face to face.
An accused will also be considered a care worker if the person being cared for (the complainant) gets health services from a public or private health provider, and the accused works there and meets them often face to face.
Finally, an accused is a care worker if he or she provides direct care to the complainant because of their mental health needs and meets them often face to face.
As stated earlier, the SOA stresses that for the accused to be charged with this offence, they must have known or could reasonably be expected to know of the complainant’s mental disorder. Section 26(2) therefore adds a presumption of knowledge, simplifying the prosecution’s burden by assuming such awareness unless the accused can provide evidence to the contrary.
Defences and exceptions
Section 26 (5) introduces conditions under which the accused might not be held liable for the offence. These include cases where the complainant is over 18 and lawfully married to the accused, or where a pre-existing sexual relationship was present before the care relationship began. Importantly, the statute also allows for actions taken not for sexual gratification but for legitimate reasons such as health protection or emotional well-being of the complainant. The onus is on the accused to prove these defences under subsection (7).
Penalties
Violations under Section 26 carry significant penalties, reinforcing the act’s intent to deter such exploitative behaviours. If the offence involves penetration, the offence is an indictable one, and on conviction, an accused may be sentenced to life in prison. However, where the offence does not include penetration, on summary conviction, offenders face a fine of $1 million and up to five years’ imprisonment, while conviction on indictment results in imprisonment for up to ten years.
Conclusion
Section 26 of the Sexual Offences Act serves as a robust legal mechanism designed to protect individuals with mental disorders within care settings from being exploited through exposure to sexual acts or materials. By clearly delineating the offence, establishing stringent knowledge requirements, and setting forth substantial penalties, the provision ensures a high standard of protection for some of society’s most vulnerable members. Further-more, the inclusion of specific defences allows the law to accommodate nuanced human circumstances, demonstrating a balanced approach to justice.
Mr Chevy Devonish is a Senior Legal Advisor with the Attorney General’s Chambers and Ministry of Legal Affairs, and a Part-time Lecturer at the University of Guyana. You can contact Mr Devonish at chevydevonish@gmail.com.
