I thought about using today’s column to speak about the ongoing Guyana-Venezuela controversy, but decided against it because it seems that the public is saturated with information on the related facts and law. If, however, I am wrong, and you would like me to break down the related legal realities concerning the border controversy, send me an email.
This week, we begin a very important series: The Sexual Offences Series. I was first introduced to the law on sexual offences in 2015 in criminal law classes, and was surprised how technical the laws of sexual offences are. The purpose of this series, which starts with this article, is to teach the general public about sexual offences, but more importantly, to arm the public with the knowledge to be able to know if they have been a victim of a sexual offence. Additionally, it is my hope that readers of this article will learn what actions can make them a perpetrator of a sexual offence. One may ask: is it possible for a person to commit a sexual offence and not know they have done so? The simple answer is yes. Unsavoury as it may be and sound, my interaction with some people has revealed that some have been raped without realising it, and some have raped without realising it. This article therefore aims to educate, and empower.
Consent
We begin today with the topic of consent. Consent is needed for all sexual activity. Consent is generally considered to be the verbal or non-verbal approval given by one person or another to be engaged in sexual activity. Having regard to the myriad things which can affect consent, however, consent is not as simple as saying ‘yes’ when asked to engage in sexual activity, or ‘not resisting’ when sexual activity is initiated. Put differently, a person may say yes to, or not resist sexual advances, but this does not always mean that the person wants to engage in the sexual activity. More on this later. For now, the most important place to start is the definition of consent contained in Guyana’s Sexual Offences Act of 2010. I will provide the relevant text as it appears in the Act, before breaking it down. Consent is defined as “…words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or other sexual contact.” This entire definition is important, but I want us to pay particular attention to the words “competent”, “informed consent”, and “freely given agreement”, because these ingredients or elements are necessary, in law, for any consent to sexual intercourse or other sexual contact to be seen as valid by a court. I am of the view that people are generally aware of the words and actions they use to indicate that they are interested in engaging in sexual activity. We will now examine the elements of consent.
Competence
There are categories of people who are incapable of giving consent to any sexual activity, including sexual intercourse. In Guyana, the age of consent is 16 years. As such, though a person below the age of 16 can, in fact, agree, verbally or by overt actions to sexual intercourse or other sexual contact, the law does not consider these persons as competent to give consent, and thus steps in to negate this consent. It is for this reason that sexual intercourse with a person under 16 is sometimes referred to as “statutory rape.” Another category of people who are not competent to give consent to any sexual activity are persons who are permanently under some disease of the mind. On this point, section 23 (1) (c) of the SOA 2010 states that a person commits the offence of obtaining sexual activity with a person with a mental disorder by inducement etc if the complainant has a mental disorder and the accused knew, or could reasonably be expected to know that the complainant has a mental disorder. It is also possible for persons who, though generally competent, occasionally become incompetent to give consent in some cases. These would include a person who is extremely inebriated or blackout drunk, a person who is asleep, a person whose cognitive ability is impaired due to medication, or a person who has bouts of mental impairment. As such, engaging in sexual activity, including intercourse with these categories of persons, and in the circumstances outlined is likely to constitute a criminal offence.
Informed consent
Most members of the public know about consent, but I do not think I have ever heard a non-lawyer, or person involved in some kind of advocacy talk about informed consent. So, what is it? Case law teaches us that a person to whom sex is proposed/with whom sex is initiated must be fully aware of the exact nature of the activity they are about to engage in. This may seem so obvious that we may say it is not necessary to say this. Human beings, however, never fail to surprise. Many decades ago, a singing coach had sexual intercourse with a pupil under the guise that he was opening her air passage to improve her singing. He argued at trial that the pupil consented to his conduct, but the court found that he was fraudulent as to the nature and quality of what he was doing, thereby negating the pupil’s consent. In another case, an accused and a couple (A (a woman) and B (her boyfriend)) retired to the couple’s apartment after a night of drinking to continue drinking. Soon after, A retired to bed and B fell asleep on the couch, after which the accused entered the bed with A. A, thinking that it was her boyfriend who had entered the bed, said ‘ I love you’ and they started having sexual intercourse. She soon realised this was not her boyfriend and pushed him off. At trial, the accused argued that she had consented to the sexual intercourse. The court said, however, that the accused impersonated B, and by so doing, he had committed fraud as to his identity, thereby vitiating any consent the complainant intended to give. In yet another case, a lecturer in ICT held himself out to be an employee for a hospital which was creating a database on breast cancer. He carried out physical examinations of women’s breasts etc. The women consented to these examinations because they believed he was qualified to do so. The court in this case ruled that the women did not give true consent to the conduct of the lecturer, and he engaged in fraud as to why he was touching their breasts. Earlier in this article I indicated that consent is not as simple as verbally agreeing to, or not resisting sexual advances, and I think these scenarios have started to bring this out. In any case, we see here that there are categories of persons who are not fit to consent to sexual activity. Further, we see that the courts have developed ways to hold accountable those who obtain consent to sexual activity by lying about the nature of what they are doing, or who they are.
There are instances, however, where lying will not constitute fraud capable of negating consent. In one case, a police officer who had gone undercover to infiltrate an extremist environmental group had sex with one of its members, who he had started a relationship with. After eventually finding out his identity, she accused him of rape, arguing that he lied about his identity. The court, however, said that in such circumstances, his identity would not vitiate her consent, and since it was clear that she was consenting to the sex they were having, there was no rape. In another case, a man picked up a prostitute to have sex with, and proposed to pay her afterward. He did not pay as promised, and she accused him of rape. The court decided that the prostitute was aware of the nature and quality of what they were doing, and that, consequently, there was no rape.
Freely given agreement
Indeed, consent may be given to proposed sexual activity, including intercourse, but unless that consent is freely given, that is, without the presence of fear, or force, the consent given is not true consent, and will be vitiated. There are easy and hard examples to demonstrate this. Obviously, if one person physically overpowers another and engages in sexual activity with them, this will be rape as the person being overpowered is not consenting. Alternatively, if one person physically abuses, or threatens to physically abuse another for the purpose of procuring sexual activity, including intercourse, this is also likely to constitute a sexual offence.
However, there have been many instances in which perpetrators of sexual offences contend that they should not be tried for those alleged offences because their alleged victims either verbally agreed to engage in the sexual activity with them, or at least did not resist. What is the state of the law in such situations? In a popular English case, A and B (two girls) were offered a lift home from a disco by C and D (two men). Instead, C and D took A and B to a bungalow. Once there, the girls refused to go in, and walked away. C went into the bungalow while D went after the girls. Once D caught up with the girls, he raped A in the car. Subsequently, he took both girls back to the bungalow. He then dragged B into a bedroom. C then told A that he was going to have sexual intercourse with her, and she told him that she had already been raped and wanted to be left alone. He then told her to take off her clothes, which she did because, as she said, she was frightened. They then had intercourse. At trial, the judge told the jury that though A did not scream or struggle, but instead submitted to sex with C without him using force or threatening violence, they had to consider whether she really consented to having intercourse with him. The jury decided that in the circumstances, they did not think A was consenting, though she did not scream or struggle. C was convicted, and appealed his conviction. On appeal, the court accepted that sexual intercourse procured by force fear or fraud was rape. However, as C argued that he did not force or threaten A, the court said that inducing sex by fraud or threats other than threats of force, or other intimidation may be enough to cancel consent given under those circumstances. The judges went on to note that there is a difference between consent, and submission, and that while every consent involves a submission, every submission does not involve consent. The court also said that where intercourse takes place after threats not involving violence or the fear of it, there will be a focus on the state of the victim’s mind immediately before the intercourse, and also consider all other relevant circumstances. As such, having considered that; A had asked to be taken home initially; when she was brough to the bungalow she tried to leave; she was raped by D when he went after her; she was crying when she returned; and that she told C that she has been raped earlier in the car, her failure to scream or struggle during sex with C should not be seen as submission which involved consent. That submission was devoid of consent, so that the sexual activity which took place constituted a sexual offence. I think this category is particularly interesting, and important for members of the Guyanese public.
It is important to point out that despite the decisions shared above, each criminal case involving allegations of a sexual offence will be decided on the specific, often unique facts of that case. As such, there may be cases which contain similar facts to the cases stated above, but may see a different outcome. However, as we cannot predict the future, it is pointless to dwell on such things. For now, I think it is important for more people to know about these principles. I will conclude here for today, as I fear I may have included too much information.
Next week, we continue with consent, and will be examining presumptions as to consent contained in the Sexual Offences Act 2010.
Chevy Devonish is an attorney-at-law and a lecturer at the University of Guyana and a Training Consultant at Nations University. You can email Chevy at chevydevonsh@gmail.com.
