SEXUAL OFFENCES ACT 2010

(Guyana)

Presentation by Roxane George, J

Help & Shelter Inc
December 11, 2010
Disclaimer: This presentation is not to be used as a substitute for the Sexual Offences Act 2010
or for legal advice. It is to be used as a guide only.

The Sexual Offences Act 2010 was

brought into force by the order of the
Minister on May 25, 2010 after being
assented to by the President on May
24, 2010.

When did the Sexual Offences Act

(SOA) come into force?

What does the SOA implement?

The SOA repeals and replaces most of the

provisions in the Criminal Law (Offences)
Act, Chapter 8:01 that dealt with sexual
offences, though offences such as indecent
assault and offences classified as offences
against morality such as buggery and
bestiality have not been specifically
repealed. It does appear though that they
may be impliedly repealed. (s 93)

Is the SOA gender neutral?

The Act is gender

neutral so that the
offences are
allegedly
committed whether
the alleged
perpetrator or the
victim is female or
male.

What happens to offences

committed before the SOA?

(s39,95)

Where a person committed an offence

before this Act came into operation,
they would be charged under the old
Act. As a result, if the conduct was
not an offence, e.g. meeting for
sexual grooming or voyeurism, then
they cannot be charged at all.

Challenges

There are a number of challenges to the

implementation of the Act, as well as legal
issues which are open to discussion
regarding the constitutionality of some
provisions and the burden and standard of
proof, among others, which need not be
gotten into here, though mention will be
made of some challenges that still exist
especially in relation to children.

Important Definitions - child

child means a
person under 18
yrs of age though
there are different
age ranges for
different offences
e.g. sexual activity
with a child under
16 yrs old.

Important Definitions CONSENT (ss2,6)

Consent means words or overt actions by a person who is

competent to given informed consent indicating a freely given
agreement to have sexual intercourse or other sexual contact. Of
course, there is a presumption that a child under 16 yrs old cannot
consent to sexual activity except in certain defined circumstances.
Consent and belief in consent cannot be inferred by
(a) reason of silence or lack of physical resistance on the part
of the complainant; or
(b)reason of sexual arousal including orgasm and ejaculation.
Whether a belief in consent is reasonable is to be determined
having regard to all the circumstances, including any steps the
accused took to ascertain whether the complainant or the third
person consents.
In addition, self-induced intoxication or recklessness as to whether
the complainant was consenting is not a defence to a charge of
rape.

Important Definitions Presumptions

against CONSENT (s2,6)

There are a number of circumstances where it can be presumed that a

complainant did not consent to sexual activity and these include 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;

(b) any person was, at the time of the sexual activity or immediately before
it began, causing the complainant to fear that violence was being used, or
that immediate violence would be used, against another person;

(c ) the complainant was, and the accused was not, unlawfully detained at
the time of the sexual activity;

(d) any person had administered to or caused to be taken by the

complainant, without the complainant's consent, a substance which, having
regard to when it was administered or taken, was capable of causing or
enabling the complainant to be stupefied or overpowered at the time of the
sexual activity;

(e) the presence of more than one person at the time of the sexual activity
was used to intimidate the complainant;

(f) the complainant was asleep or otherwise unconscious at the time of the
sexual activity;

(g) because of the complainant's physical disability, the complainant would

not have been able at the time of the sexual activity to communicate to the
accused whether the complainant consented

Important Definitions Presumptions

against CONSENT (ss2,6,7)

(h) the complainant was, at the time of the sexual activity, unable to
refuse because of or for a reason related to a mental disorder, and the
accused knew or could reasonably have been expected to know this; In
this case, the complainant would be unable to refuse if the he/she lacks
the capacity to choose whether to agree to the sexual activity (whether
because the complainant lacks sufficient understanding of the nature or
reasonably foreseeable consequences of what is being done, or for any
other reason), or the complainant is unable to communicate such a
choice to the accused;
(i) the complainant was otherwise incapable of consenting to the sexual
activity;
(j) agreement was expressed by the words or conduct of a person
other than the complainant;
(k)abuse of a position of power or authority to the extent that the
complainant could not resist at the time of the sexual activity;
(l) 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.

Important Definitions Presumptions

against CONSENT (s8)

Also, if the evidence shows that the

accused deceived the complainant
about the nature or purpose of the
sexual activity or that the accused
induced the complainant to consent to
the sexual activity by impersonating a
person known personally to the
complainant this would be
conclusive proof that the complainant
did not consent.

No need to prove lack of

consent (s9)

There is no need to prove that there

was a lack of consent where the
complainant is a child under 16 yrs or
vulnerable adult such as a person
with a mental disorder or who is in
the care of a care worker or person in
a position of trust.
Belief in consent (whether reasonable
or not) is not a defence.

Consent and persons under 16 yrs (ss

10, 11, 12)

There is no need to prove a lack of consent where

the accused commits the offence of rape or has sexual
activity with a child under 16 yrs old or causes a child
under 16 yrs to watch a sexual act including looking at
an image of a person engaging in sexual activity. In this
case, it would be irrelevant whether at the time of
penetration or the activity the accused believed the
complainant to be 16 yrs or older.
Sexual activity in this case refers to sexual activity not
including penetration but includes causing or inciting a
complainant to engage in a sexual activity with a third
party or causing a complainant to perform a sexual act
including causing the complainant to masturbate.
Belief in consent (whether reasonable or not) is not a
defence. (s9)

Consent and persons under 16 yrs (ss

10, 11, 12)

An the accused is not guilty of an offence of causing a

child to watch a sexual act, if the accused acts for the
purpose of
(a) protecting the complainant from a sexually
transmitted infection;

(b)protecting the physical safety of the complainant;

(c) preventing the complainant from becoming

pregnant; or

(d)promoting the complainant's emotional well-being

by the giving of advice,

and not for the purpose of sexual gratification or

causing or encouraging the activity or the
complainants participation in it.

Important Definitions - image

Image means a moving or still image and includes an

image produced by any means and where the context
permits, a three-dimensional image and references to
an imaginary person and references to observation
(however expressed) are to observation whether
direct or by looking at an image.

This definition speaks to photographic and similar

material of a sexual nature which can be shown or to
which a person may be exposed in circumstances that
would not be permissible under the Act.

Important Definitions learning

disability & mental disorder

learning disability means a state of

arrested or incomplete development of
the mind which includes significant
impairment of intelligence and social
functioning;
dependence on alcohol or drugs is not
considered to be a disorder or disability of
the mind.
mental disorder means any disorder or
disability of the mind, including learning
disability

Important definitions - penetration

any intrusion of any part of a persons body or an

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;
where the penetration is by the penis, the emission
of seminal fluid is not necessary to prove the
penetration
penetration is a continuing act from entry to
withdrawal.

Important definitions sexual/sexual

activity/touching

Sexual includes penetration, touching or any other activity if

a reasonable person would consider that

whatever its circumstances or any persons purpose in

relation to it, it is because of its nature sexual or

because of its nature it may be sexual and because of its

circumstances or the purpose of any person in relation to
it (or both) it is sexual
This may be wide enough to include e.g. sexting which
apparently means sending texts of a sexual nature or with
sexual content.
sexual activity includes touching
touching includes touching with any part of the body, which
includes a part surgically constructed (in particular, through
gender reassignment surgery), with anything else or through
anything

Important definitions vagina

vagina includes vulva, meaning the

region of the external genital organs
of the female and in relation to an
animal, references to the vagina or
anus include references to any similar
part.

RAPE

(s3)

Rape is committed 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.

Sexual assault

(s4)

Sexual assault occurs where

(a) the accused (i) touches another person ("the complainant")

in a sexual way;

(ii) causes the complainant to touch the

accused in a sexual way;
(iii) causes the complainant to touch a third party
in a sexual way; or
(iv) otherwise indecently assaults the complainant
(b) the complainant does not consent to the
touching or the act which would constitutes indecent
assault and
(c) the accused does not reasonably believe that the
complainant consents

An issue for consideration

There may be an issue here given the

definitions of sexual, touching and
penetration which could mean that a
person who would under the old law
be considered to have committed the
offence of indecent assault or under
this law sexual assault could
nevertheless be charged with rape.

Incest

There are new provisions that deal with incest

(by a new name) (children)

Sexual activity with a child family member (s 16, 17)

Since it is sexual activity this means that not only rape
would be included, so that what was traditionally incest by
sexual intercourse has been widened.

Family relationship for the purposes of these sections would include

relatives of the whole blood, half-blood, persons in or in former
common law relationships where the accused would have cared for,
trained or supervised the complainant, step parents whether through
legal or common law marriage, cousins step siblings and foster parents.
There is no need to prove that there was a lack of consent and belief in
consent (whether reasonable or not) is not a defence.(s9)
The accused is to be taken to know or to be reasonably expected to
know of the relationship to the complainant unless there is prima facie
or some evidence to the contrary.
The offence is not committed if the accused married to the accused or
if the two persons had a sexual relationship prior to becoming relatives.

Incest

(by a new name) (adults)

Sexual penetration with an adult family member (s 22)

seems to contemplate a more limited range of offence than is the case for children.)

(This

The accused must be 16 yrs or over and the complainant 18 yrs r

over.
Family relationship for the purposes of this section would include
parents, grandparents, children, grandchildren, siblings of the
whole or half blood, uncles, aunts, nephews and nieces. The list
of relatives is narrower than for incest with children.
There is no need to prove that there was a lack of consent and
belief in consent (whether reasonable or not) is not a defence.(s9)
The accused is to be taken to know or to be reasonably expected
to know of the relationship to the complainant unless there is
prima facie or some evidence to the contrary.

NEW OFFENCES

NEW OFFENCES
UNDER THE SOA
The SOA has created a
number of new
offences

Offences against children under

16 yrs (s 10,11,12,13)

Rape of a child under 16 yrs

Sexual activity with a child under 16 yrs
Causing a child under 16 yrs to watch sexual act including an image of
sexual activity
Meeting a child under 16 yrs following sexual grooming

(There is no definition of sexual grooming in the Act.) (s13) There is a definition

online which states that grooming is establishing a predatory relationship: the

developing of the trust of a young person or his or her family in order to engage
in illegal sexual conduct; "Internet grooming"
Content above provided by Encarta World English Dictionary [North American Edition] & (P) 2009
Microsoft Corporation. All rights reserved. Developed for Microsoft by Bloomsbury Publishing Plc.

The offence is meant to be committed after an accused would have met or

communicated with the complainant who is under 16 yrs old on at least two earlier
occasions and the accused actually meets the complainant or travels with the
intention of meeting the complainant in any part of the world and with the intention
of doing anything to or regarding the complainant which would involve the
commission of an offence under the SOA e.g. meeting to engage in some form of
sexual activity.
So this offence would not apply to children between 16 18 yrs.
Its not necessary to prove lack of consent and belief in consent (whether
reasonable or not) is not a defence.
NB that the definition of child is gender neutral and so now applies to both
girls and boys.

Defences

(s 14,15)

There are two defences which appear to take into

consideration teenage sexual activity.

They provide that where an accused is charged in respect of a

complainant who is between 12 14 yrs, it is a defence that
the complainant consented to the activity if the accused is less
than two years older than the complainant and the accused
was not in a position of trust or authority, or in a relationship
of dependency with the complainant or in a relationship that is
exploitative of the complainant. (s14)
Similarly, where a complainant is between 14 16 yrs it is a
defence that the complainant consented to the activity if the
accused is less than four yrs older than the complainant and is
not in a position of trust or authority, or in a relationship of
dependency with the complainant or in a relationship that is
exploitative of the complainant. (s15)

Sexual activity with child

abusing a position of trust

(s18)

This offence would be committed if

(i) the accused engages in sexual activity with the

complainant;

(ii) causes the complainant to engage in sexual activity

with a third party; or

(iii) causes the complainant to perform sexual acts

including causing the complainant to masturbate; and
the accused is in a position of trust in relation to the
complainant, and
the accused knows or could reasonably be expected to know of
the circumstances by virtue of which the accused is in a
position of trust in relation to the complainant.
There is no need to prove that there was a lack of consent and
belief in consent (whether reasonable or not) is not a defence.

What is a position of trust?

(ss

18,19)

A position of trust would include cases where the accused

(1) looks after the complainant in an institution by virtue of a

Court order
(2) looks after the complainant in an institution such as a
hospital, independent clinic, care home, residential home or
private hospital, community home, voluntary home, childrens
home or orphanage
(3) looks after the complainant in a educational institution
whether as a teacher on in another role where the accused is not
a student
(4) the accused is the guardian of the complainant or is the legal
or reputed spouse of one of the complainants parents or
guardians
(5) the accused is a social worker, probation officer, coach,
instructor, minister of religion, babysitter, child-minder or has a
welfare position in relation to the complainant, and has regular
unsupervised contact with the complainant.

Obstruction by person in a
position of trust (s 20)

It would be an offence for a person to

obstruct the prosecution of that
person if he/she prevents a child from
giving a statement to the police,
giving evidence under the paper
committal proceedings or testifying in
relation to this offence of sexual
activity with a child abusing a position
of trust.

Arranging/facilitating
commission of a child sex
offence (s21)

This offence is committed when an accused could be

charged if he/she facilitates the commission of any of the
child sex offences outlined whether committed by the said
accused or by any one else in any part of the world. A
person would not be guilty of this offence if the person acts
for the protection of a child if the person acts for the
purpose of

(a) protecting the child from sexually transmitted infection;

(b) protecting the physical safety of the child;
(c) preventing the child from becoming pregnant; or
(d) promoting the child's emotional well-being by the giving of
advice, or any educational activity,
and not for the purpose of obtaining sexual gratification or for
the purpose of causing or encouraging the activity constituting
the offence or the child's participation in it.
There is no need to prove that there was a lack of consent and
belief in consent (whether reasonable or not) is not a defence.

Sexual offences against

persons with mental disorders
(ss 23,24)

There are a number of offences where it would be unlawful to have

sexual activity with a person with a mental disorder. These include

(1) obtaining sexual activity with a person with a mental disorder by

inducement, threat or deception

(2) causing a person with a mental disorder to watch a sexual act by

inducement, threat or deception

There is no need to prove that there was a lack of consent and belief in
consent (whether reasonable or not) is not a defence.
A person would not be guilty of these offences
(1) if the complainant is over 18 yrs and the accused and the complainant
are lawfully married or there existed a prior sexual relationship between the
two or the accused acted for the purpose of

(a) protecting the complainant from a sexually transmitted

infection;

(b) protecting the physical safety of the complainant;

(c) preventing the complainant from becoming pregnant; or

(d) promoting the complainant's emotional well-being by the giving

of advice,

and not for the purpose of obtaining sexual gratification or for the purpose
of causing or encouraging the activity constituting the offence or the
complainant's participation in it.

Sexual offences committed by

care worker against a person
with
mental
disorder
(ss 25,26)
A care worker would be guilty of an offence if he/she engages in,

causes or incites sexual activity with a person with a

mental disorder. Similarly, a care worker commits an offence if
he/she causes a person with a mental disorder to watch a
sexual act or look at an image of any sexual activity.
A care worker would not be guilty of these offences

(1) if the complainant is over 18 yrs and the accused and the
complainant are lawfully married or there existed a prior sexual
relationship between the two or the accused acted for the purpose of

(a) protecting the complainant from a sexually transmitted

infection;
(b) protecting the physical safety of the complainant;
(c) preventing the complainant from becoming pregnant; or
(d)promoting the complainant's emotional well-being by the giving
of advice,

and not for the purpose of obtaining sexual gratification or for the
purpose of causing or encouraging the activity constituting the offence
or the complainant's participation in it.

Who is a care worker

(s27)

A care worker would be any person

who cares for the person with a
mental disorder in a care home,
community home, voluntary home or
childrens home or the person with
the mental disorder is a patient of a
public health body or independent
medical agency or independent clinic
or hospital.

Exposure of genitals

(s28)

A person commits this offence if

he/she intentionally exposes his/her
genitals and intends that someone
will see his/her genitals and be
caused alarm or distress. This would
be akin to what is known as indecent
exposure.

Voyeurism (peeping)

(s29)

A person commits the offence of voyeurism if

(a) for the purpose of obtaining sexual gratification,

the accused observes another person ("the
complainant") doing a private act without the express
consent of the complainant to being observed for
sexual gratification;

(b) the accused installs or operates equipment, or

constructs or adapts a structure or part of a structure,
with the intention of enabling him/herself or another
person to commit this offence.

(c) an accused records another person doing a private

act with the intention that the accused or another
person for the purpose of obtaining sexual gratification
would look at an image of the complainant doing the
act without the express consent of the complainant to
record the act with that intention.

When can voyeurism occur?

Voyeurism occurs when a person is

doing a private act if the person is in
a place which, in the circumstances,
would reasonably be expected to
provide privacy, and

(a) the person's genitals, buttocks or breasts

are exposed or covered only with underwear;
(b) the person is using a lavatory; or
(c) the person is doing a sexual act that is not
of a kind ordinarily done in public.

Some other offences

Obtaining sexual activity with a person with a mental disorder by

inducement, threat or deception (s23)

Intercourse with an animal (s31) However, there is no modification for

reference to animal to exclude a human being. [With a general definition of animal
this provision may impliedly repeal that of buggery.]

Administering substance with intent to cause a complainant to consent

knowing that the complainant does not consent and with the intention of
stupefying or overpowering the complainant to engage in sexual activity is an
offence. (s32)

Committing any offence with intent to commit a sexual offence e.g. robbery
with intent to commit rape, kidnapping with intent to commit rape or false
imprisonment with intent to commit rape (s33)

Trespass with intent to commit a sexual offence can also occur where a
person enters premises as a trespasser i.e. without permission and commits a
sexual offence. (s34)

Conspiracies, attempts, incitement, aiding and abetting the commission of

any of the offences in the Act would also amount to offences. (s36)

Other provisions offences

committed outside Guyana (s35)

This seems to provide for a person to be charged where

they have engaged in conduct outside of Guyana which
would be a sexual offence in Guyana. But it is not clearly
framed to create an offence or allow for a charge to be
instituted.
This section is a bit unclear and there may be issues in
relation to proof. Apparently it is meant to capture a
situation where maybe say a person commits a sexual
offence in Brazil against a victim who returns to Guyana
and makes a complaint; the accused returns to Guyana
and is for some reason not charged in Brazil, then if the
conduct would amount to an offence in Guyana then
he/she may be charged. But there are a number of legal
hurdles that may have to be crossed in relation to
jurisdiction etc.

Abolition of law that

perpetuated old myths

Abolition of defence of Marital and

other relationships (s37)

It is no longer a defence to any of the offences

under the SOA for an accused to say that he or
she is married to the complainant or that there
is a proposal of marriage in existence.

Abolition of presumption that a male

under 14 yrs incapable of sexual
intercourse (s 38)

The presumption that a male under 14 yrs is

incapable of sexual intercourse is abolished.

Divesting person of authority over

a child (s40)

This allows the Court to divest a person of their

authority over a child if it is proved to the satisfaction
of the Court that an offence under this Act committed
against a child has been caused, encouraged or
favoured by the child's father, mother, guardian or any
other person who has lawful care or charge of the
child.
This would be civil matter that flows out of a criminal
case. The problem with this provision is that it will
require a full hearing into what is really a custody
issue and a Court cannot act and make orders without
such a hearing. Its unclear when and by which court
this hearing will be done. This should be a matter for
the Childcare & Protection Agency under the
Protection of Children Act.

Police action

(ss41,42)

Investigations by police in sexual offences cases are to be

done in a timely manner. There is a 3 month period in which
the police are to conduct their investigations and charge or
send the file for the advice of the DPPs Chambers.
Confrontations of complainants with accused is now
prohibited. A complainant is not to be in the presence of an
accused except for the purposes of an identification parade
which must be conducted by way of audio visual link, two
mirror or in any other manner sensitive to the complainants
well-being. The only difficulty is that most of the police
stations are not equipped with audio visual links or two
mirrors and officers will need guidelines on appropriate
ways of addressing this issue. [any ideas?]

Court proceedings

There is provision for the establishment of a special court but the report
on this is to be given to the Minister within one year of the establishment of
the National Task Force for the Prevention of Sexual Violence. (s44)
These courts will have to be established all over the country and not only in
Georgetown and may need to be established at both the High Court and
Magistrates Courts levels. All judicial officers would have to be trained.
In camera proceedings (s45,48,49,62)
Generally, the hearings of sexual offences matters are to be in a closed
court with the members of the public and media being excluded. There is
also to be no publication that would identify a complainant. However, the
passing of sentence is to be done in public. The complainant does not have
to be identified even in court but it is unclear how this will work. (s63)
The provisions of the Criminal Law (Amendment) No 19/1991 which first
allowed for in camera hearings appear to be clearer and better. In any event
it necessitates the courts following the provisions of the legislation.
A spouse of an accused can now be compelled to give evidence for
the prosecution or the defence without the consent of the accused.
(s70)

Modernising the rules of evidence

(ss 52,69,71,72,77,78,79,80,Second Schedule)

The rules of evidence relating to

recent complaint, corroboration
and evidence of a complainants
sexual activity and reputation
have been modernised. This means
that stereotypical myths regarding
victims of sexual offences especially
females have been abolished or
modified.

Modernising the rules of evidence

(ss 52,69,71,72,77,78,79,80,Second Schedule)

There are restrictions on the reliance on the conduct of a complainant and

recent complaint as a factor in deciding that a complainant is speaking the
truth. 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.
The judge is also to warn the jury that (a) an absence of complaint or a
delay in complaining does not necessarily indicate that the allegation that
the offence was committed is false; and (b) inform the jury that there may
be good reasons why a victim of a sexual offence may hesitate in making or
may refrain from making a complaint about the assault.
There are also restrictions on evidence being led about the sexual activity
and reputation of complainants whether they are under 16 yrs or over 16
yrs. (ss77,78,79)
No corroboration of a complainants evidence, whether sworn or unsworn
is required for a conviction of an SOA offence and the judge shall not direct
the jury that it is unsafe to find the accused guilty without corroboration.
There can be no cross-examination of a complainant to show that he/she
made previous allegations of sexual offences which may be false without the
permission of the Court.

Special measures

(s55-59)

The SOA provides for special measures to allow for a

more conducive environment for a witness to testify.
These special measures include the use of (1) screens
in court so that the witness does not see the accused but
it must not block the judge, jury magistrate, lawyer and
interpreter or intermediary (2) the use of audio - visual
links, (3) the removal of gowns, (4) the examination
of a witness through an intermediary appointed to
assist the witness and the use of anatomically
correct dolls in the taking of evidence from
children.
Where an accused is represented by more than one lawyer, it is
sufficient if the witness can see at least one of them.
Rules of Court have to be drafted re these hearings on special
measures. (s54(5))

Function of an intermediary
(s58)

A special measures direction can be given by the Court

allowing for the examination of a child witness (however
and wherever conducted) to be conducted through an
interpreter or other person approved by the Court. This
person is called an intermediary.

The function of an intermediary is to communicate

(a) to the witness, questions put to the witness; and

(b) to any person asking such questions, the answers
given by the witness in reply to them,
and to explain such questions or answers so far as necessary
to enable them to be understood by the witness or person in
question.

A person may not act as an intermediary in a particular

case except after being sworn or affirmed that the person
will faithfully perform the function as intermediary.

Who can be an intermediary?

There is no provision which says who exactly can be

an intermediary and what qualifications they are to
have.
Rules of Court have to be drafted regarding
proceedings with an intermediary. (s58(6)).
Intermediaries are liable to be charged for perjury,
giving inconsistent or contradictory information on
oath, taking false oath, conspiracy to procure
conviction of an innocent person or to obstruct the
course of justice, attempting to obstruct the course of
justice and corrupt interference with conduct of a
witness or juror. (s58 (6) - Criminal Law (Offences)
Act ss 324 332)

Role of Help & Shelter

counselors and others as
intermediaries

Counselors of this NGO as well as

other counselors may wish to
ascertain what training or certification
is necessary in order to act as
intermediaries in order to assist
children to testify.

Technical evidence issues

Competence and capacity to testify (ss64,65). It is

for the court to decide whether a witness is competent
or able to give evidence and whether a witness has the
capacity to give sworn evidence. If the Court rules that
a person cannot give sworn evidence than they can give
unsworn evidence.
In order for a Court to rule that a person is competent to
testify and that s/he has the capacity to give sworn
evidence, the Court has to assess whether the person

Understands the questions put to the person as a

witness
The person gives answers which can be understood.

However, where e.g. the Court is in doubt as to

whether a witness is competent to testify, the court
may receive evidence from a social worker or a duly
qualified medical practitioner. (s 64 (5))

Technical evidence issues

Reception of unsworn evidence (s67) A conviction or verdict

would not be unsafe because reliance was placed on the unsworn
evidence of a witness.
Admissibility of statements of children into evidence (ss 73,
75, 74, 76)

A statement made by a child can be taken into evidence or

admitted where the child does not give oral testimony at a trial
apparently only if they have been prevented from doing so, but
importantly, an accused cannot be convicted on the basis of
this statement alone. This means that in the absence of other
evidence such as DNA or other scientific evidence or a confession
by the accused, an accused cannot be convicted on the basis of a
childs written statement alone. The statement has to be served on
the accused and the child is to be treated as having been examined
by the Court. (Its unclear what this means.)
Its not clear if it is the paper committal statement or any other
statement that is admissible.
It would appear that it would have to be proven that the child is
being prevented from testifying.

Technical evidence issues

There are other problems regarding the admissibility of statements by

children at a trial

In order to be admitted, the statements must be signed by the child

If the child cannot write, the childs mark or thumb print can be placed on the
statement, which must include a declaration by the person who wrote the
statement on behalf of the child, that it was read over to the child who appeared
to understand it and agreed to it.

There will be cases where these requirements for a signed statement cannot be
met, and where a child, especially a small children, would not be able to agree
that they understood that was read to them. As such, their statements would not
be admissible at the trial. These matters will have to be addressed in separate
hearings by a trial judge.

The provision in relation to admissibility of statements in documents taken for

the purposes of criminal proceedings or investigations is unclear, though an
accused can challenge the admissibility of these statements. (s 75)
There will be some issues regarding the operation of these provisions which will
have to be addressed.

Complainants right to express

views (s61)

A complainant may be allowed to

express his/her views and concerns
during bail hearings and before the
passing of sentence in a manner that
is not prejudicial to the accused. A
complainant usually does not appear
at a bail application hearing in the
High Court. The DPPs Chambers
represents the interests of a
complainant in the High Court.

Bail in sexual offences cases

(ss

81,82,83)

In deciding whether bail should be granted the main

issues/factors that a Court shall take into account are as follows:
(1) the need to secure the health, safety and well-being of the
complainant or any witness;
(2) any hardship that may be caused to the accused or the family
members of the accused if bail is not granted;
(3) the record of the accused with regard to the commission of violent acts
and whether there is evidence in or on the record of physical or
psychological abuse to children;
(4) whether there are substantial grounds for believing that the accused, if
released on bail would
(i) fail to surrender to custody;
(ii) commit an offence while on bail; or
(iii) interfere with witnesses or otherwise obstruct the course of
justice, whether in relation to the accused or any other person;
(5) any other matters which may be relevant to the case in question.

Bail in sexual offences cases

81,82,83) Other conditions

(ss

Where bail is granted the court can place conditions on the accused such
as
(a) that the that the accused abstain from communicating, directly or
indirectly, with any complainant, witness or other person identified in the
order except in accordance with the conditions specified in the order as the
court considers necessary;
(b) that the accused not harass or molest, or cause another person to
harass or molest, a specified person, including the complainant or any
relevant child;
(c) that the accused not be in a locality including a place of education in
which a specified person, including the complainant or any relevant child,
resides, works or is frequently present
(d) that the accused report at such times as are specified at a specified
police station or notify the police about any change of address, employment
or occupation, that the accused lodge his/her passport.
Where an accused is released on bail, the complainant is to be notified. (s
84)
There is a provision in s 82 which appears to shift the onus to the accused
to show why he should be placed on bail which may result in litigation as it
appears to negate the presumption of innocence.

Other orders following conviction

(s 85)

There is provision for a Court to award compensation

in addition to passing sentence on a convicted
accused. The Court can also make these orders

a drug and testing order

rehabilitation order

protection and safety order

an HIV testing order where the there is evidence of a

risk of HIV transmission to the complainant (though
there may be HIV ethics issues) and the results are to
be disclosed to the court and the complainant

mental and psychological treatment order

There will be some practical challenges regarding the

implementation of this provision, especially regarding
compensation, as again there would most likely be need
for a separate hearing.

Reporting obligations of health

workers (s86)

As in the case of the Protection of

Children Act, a health worker who on
treating a child finds evidence that a
child has been sexually abused, must
report this abuse to the police and
keep a record of this report.

Paper committals

(ss 43,74 and the

First Schedule

Where a person is charged with an offence under this Act, there

shall be no oral preliminary inquiry and instead a paper committal
shall be held by a magistrate. This means that witnesses would not
have to testify twice. Witness statements are to be filed in the
registry of the magistrates courts not later than 45 days after the
accused first appears in court. (Theres no provision for an extension so
it is unclear what is to happen if this provision is breached.) These
statements etc must be served on the accused. The statements have to
follow a particular format. (para 6 First Sch)
All documents and exhibits or copies are tendered as part of the witness
statement. Witnesses are not cross-examined.
However, there have been some procedural issues regarding the
implementation of paper committal proceedings since there is no provision
for the accused to be heard during these proceedings. This would mean that
the paper committal proceedings would be unconstitutional. It is unclear
how this is being addressed.
Further, there is a requirement that statements be signed and if a person
cannot read then the person who took the statement shall sign the
statement and complete a declaration that that the statement was read to
the person and that the person to whom it was read appeared to
understand its contents.

Paper committals

(ss 43,74 and the

First Schedule)

But there are some practical problems in relation to child witnesses

especially those who cannot read or write.
There is a requirement that they sign their statements, and as in the case of
a person who cannot read or write there is a requirement that the person
who takes the statement must include a declaration that they read the
statement to the child who appeared to understand its contents and agreed
to it.
There will be cases where the requirements for a signed statement cannot
be met, and where a child, especially where children are small, or person
would not be able to agree that they understood that was read to them. As
such, their statements would not be admissible in the paper committal
proceedings.
These are issues which the court would have to determine before admitting
the statements.

This is an issue that has to be addressed.

Paper committals

(ss 43,74 and the

First Schedule)

The magistrate has to consider whether the statements are admissible.

Once this is determined, the magistrate shall commit the accused for
trial without considering the contents of the statements, deposition or
other documents or exhibits.
However, the magistrate would have to consider the contents of
the statements etc if the accused does not have a lawyer or
s/he has a lawyer who requests to make a no case submission.
In this case, the statements or summaries of the statements and other
documents etc would have to be read aloud in court and submissions
can be made by the prosecutor and the defence. (para 14) It is not
clear how the summaries of statements are to be prepared.
A paper committal can proceed if an accused is absent from court due
to disorderly conduct or due to illness and he has a lawyer and has
consented to the proceedings going on in his absence.
It is unclear if the admissibility of confession statements has to be
addressed, though there is authority that states that the magistrate
should do so.
It seems that the magistrate does not have to inform the accused
about his rights to call witnesses etc in the High Court.

Paper committals

(ss 43,74 and the

First Schedule)

Deposition: Where a person refuses to submit a

statement, a magistrate can issue a summons or a
warrant for the arrest of the person so that they can go
to court to give a deposition. The deposition can be
sworn or unsworn. (s67) This procedure has to be done
before the paper committal proceedings are commenced.
This seems to mean that the person will have to actually
testify. [It is unclear how this is meant to operate and
how the accused will be informed and if so whether the
accused will be allowed to cross-examine this witness.]
Other statements may also be tendered before the
paper committal proceedings commence. (para 8, First
Sch) [It is unclear how this provision is to operate.]

Paper committals

(ss 43,74 and the

First Schedule)

Where a magistrate discharges an

accused, the DPP may require the
magistrate to send the statements etc
to her for a review. If the DPP is of
the view that a case has been made
out for the accused to be tried, the
DPP will remit or re-send the
statements etc to the magistrate with
directions that s/he commit the
accused.

General information

A person whose statement etc was not submitted

during the paper committal hearing can still be called
to give evidence in the High Court but the prosecution
has to serve statements. This formalises a procedure
that is already in place but it does not appear that the
prosecution has to give a reason for not tendering the
statements before as is currently required. (para 17
First Sch)
Where persons make false complaints, give false
statements, depositions and evidence, they can be
charged with making a false complaint, or perjury.

General information

It appears that there will be a need for pre-trial

hearings and case management to determine a
number of the matters before the trial commences,
otherwise it will make trial time longer and more
complicated.
Rules of Court have to be drafted to allow for much of
the procedure that is necessary for the courts to deal
with cases under the Act. (s92)
There would have to be care in the investigation and
assessment of cases since if there is a defence on file
it may be best not to charge. Also, if there is no
supporting evidence of a child where the childs
statement alone cannot be used to secure a
conviction, then again it may be an exercise in futility
to charge.

General information

A Task Force (s87) and sexual violence unit (s88) are

to be established to facilitate the implementation of
the SOA.
While the Judicial Service Commission (JSC) is tasked
with ensuring training for magistrates and judges, the
JSC does not have this mandate under the
Constitution of Guyana. (s91(2))
There is concern about the flow through of cases to
the High Court if there are many cases for which
paper committals are done. This could result in the
bottleneck and issues of delay moving from the
magistrates courts to the High Court. This will also
become an issue regarding whether bail should be
granted.

CONCLUSION

There is much to commend

the Sexual Offences Act,
2010 (Guyana). A great
deal will have to be done in
order to make its provisions
operational for the benefit
of the persons for whom it
has been enacted.
Roxane George, J
Help & Shelter Inc
December 11, 2010
Disclaimer: This presentation is not to be used as a substitute
for the Sexual Offences Act 2010 or for legal advice. It is to be
used as a guide only.