Punishment of sexual crimes

Breakdown of the Sexual Offences Act

If we review the articles in this column over the past few weeks, we will find that in most cases the offences and penalties we have examined apply to the person committing the act which constitutes an offence under the Sexual Offences Act, Cap 8:03, Laws of Guyana (“SOA”).

For example, the offence of rape under Section 3 of the SOA is committed by the person who performs sexual penetration on a victim without consent or causes the victim to perform sexual penetration on another person without consent.

The same applies to a person who commits sexual assault (sexual acts without consent, excluding penetration) or arranges for the victim to be sexually abused by another person.

However, it happens that several people plan to commit a sexual offense, but not all of them participate in the sexual offense or not all of them are supposed to be involved in the sexual offense.

Example: A pays B to rape C and B then rapes C. Is A guilty considering that AC did not rape? What if A, B and C plan to rape D? A, B and C then go to D’s apartment where A acts as a guard and holds BD while CD rapes. How should A and B be treated?

Finally, suppose that A and B are friends. B tells A that his girlfriend C cheated on him. A advises B to rape C as punishment, which B does. How does the law treat A, who was not involved in the rape?

Fortunately, over the years, common law answers to these questions have evolved, codified by the National Assembly of Guyana in Section 36 of the SOA, entitled in the marginal note “Punishment for attempting to commit, etc., offences against this Act”.

Today we will take a closer look at this section to see how the SOA deals with persons who commit crimes at an advanced stage, that is, persons who play a role in the commission of a crime within the meaning of the SOA.

Section 36(b) of the SOA states that any person who enters into a conspiracy with another person to commit an offence under the SOA (a conspiracy in this context refers to a plan between two or more persons to commit a sexual offence under the SOA) may be charged, tried, convicted and punished as if he or she were the principal offender (the person who committed the act amounting to a sexual offence).

For example, as in the scenario described above, where A, B, and C plan to rape D, but only CD rapes while A stands guard and detains BD, A and B, along with C, can be charged, tried, and convicted of rape even though they did not participate in the sexual penetration.

Even if A, B and C formed a plan to rape D, but A later backed out while B and C continued to rape D, A can still be charged, prosecuted and convicted as if he had also committed rape, unless he took serious steps to thwart the plan. It would be sufficient to simply tell the others that he no longer intended to participate or to refuse to appear at the time of the event. Often the court will require such a party to take persuasive steps to prevent the crime, such as notifying the appropriate authorities.

Section 36(c) of the SOA states that any person who solicits, instigates, aids, abets or advises another person to commit an offence under the SOA can be charged, tried and convicted and punished in the same way as if he or she were the person who committed the acts deemed to be a sexual offence under the SOA. The terms “soliciting”, “aiding”, “abetting” and “abetting” refer to various ways in which another person can be involved in the commission of an offence under the SOA. These can include providing physical assistance, luring a person to a particular place under false pretenses to commit a sexual offence, hiding a person accused of rape, etc. These terms aim to encompass every conceivable way in which a person can play a role in the commission of a sexual offence.

For example, if A and BC intended to rape but BC only held on while AC raped, or if B helped kidnap C and then raped only AC, both A and B can be charged with rape and brought to trial, even if B was the only one who had sexual contact with C without C’s consent.

Finally, Section 36(d) of the SOA provides that any person who causes or induces the commission of an offence under the SOA or attempts to do so may be charged, tried and convicted as if that person were the principal offender. Thus, as in the example above, if AB pays or otherwise persuades him to rape C and B then proceeds to rape C,

A could also be charged with rape and brought to trial even if he did not sexually penetrate C without his consent.

Even if AB pays or otherwise convinces him to rape C, and B attempts to rape C but fails, both A and B can be charged with attempted rape and brought to trial.

These provisions contain the principles or rules governing participation in a crime and are intended to ensure that persons who knowingly participate in the attempt or commission of a crime cannot evade responsibility but are punished as severely as the persons who committed the main offence.

Of course, Section 36 of the SOA also means that people who are involved in the commission of a sexual offence, even if they do not commit the crime, will receive the same punishment. For example, a person who acts as a minder during a rape or who restrains a rape victim may receive the same punishment as the person who committed the rape.

For example, if A acts as a guard while BC rapes, both A and B can be found guilty of rape and sentenced to life imprisonment.

This provision also demonstrates how seriously the National Assembly of Guyana takes the issue of facilitation in the commission of sexual crimes and the steps it is prepared to take to prevent such behaviour.

Mr. Chevy Devonish is a Senior Legal Counsel at the Attorney General’s Chambers and the Ministry of Legal Affairs and a part-time lecturer at the University of Guyana. Mr. Devonish can be contacted at [email protected].