1. 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.

2. When did the Sexual Offences Act (SOA) come into force?  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.

3. 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assault and offences classified as offences against morality such as buggery and bestiality have not been specifically repealed. It does appear though that they may be impliedly repealed.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)

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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

10. 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.

11. 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.

12. 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.

13. 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)

14. 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 complainant’s participation in it.

15. 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.

16. 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

17. Important definitions - penetration  any intrusion of any part of a person’s 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.

18. 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 person’s 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

19. 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.

20. 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.

21. 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

22. 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.

23. Incest (by a new name) (children)  There are new provisions that deal with incest – 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.

24. Incest (by a new name) (adults)  Sexual penetration with an adult family member (s 22) (This seems to contemplate a more limited range of offence than is the case for children.)  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.

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

26. 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. It’s 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.

27. 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)

28. 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.

29. 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, children’s 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 complainant’s 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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 children’s 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.

35. 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.

36. 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.

37. 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.

38. 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)

39. 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.

40. 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.

41. 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. It’s 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.

42. 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 DPP’s 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 complainant’s 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?]

43. 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)

44. 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 complainant’s sexual activity and reputation have been modernised. This means that stereotypical myths regarding victims of sexual offences especially females have been abolished or modified.

45. 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 complainant’s 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.

46. 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))

47. 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.

48. 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)

49. 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.

50. 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))

51. 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 child’s 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. (It’s unclear what this means.) It’s 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.

52. 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 child’s 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.

53. Complainant’s 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 DPP’s Chambers represents the interests of a complainant in the High Court.

54. 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.

55. Bail in sexual offences cases (ss 81,82,83) – Other conditions  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.

56. 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.

57. 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.

58. 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. (There’s 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.

59. 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.

60. 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.

61. 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.]

62. 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.

63. 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.

64. 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 child’s statement alone cannot be used to secure a conviction, then again it may be an exercise in futility to charge.

65. 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.

66. 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.