Over the last four weeks, I have tried to explain the concepts of consent and penetration carefully, peeling back the complexities that can make these concepts hard to grasp for both non-legal individuals and some legal minds. Now that we have covered these concepts (hopefully successfully), it is time to delve into the various sexual offences defined by the Sexual Offences Act, Chapter 8:02, Laws of Guyana (referred to as “the Act”). In today’s discussion, we will start with rape, one of the most severe and complex offences under the Act.
Rape
Rape is an offence defined under the Act (section 3). According to the Act, a person is guilty of rape when they engage in sexual penetration with the complainant or cause the complainant to engage in sexual penetration with a third party, all without the complainant’s consent or when the accused could not have reasonably believed that the complainant was consenting. In a previous column, we discussed the concepts of consent and reasonable belief in consent.
To recap, consent means a voluntary agreement, either verbally or nonverbally, to engage in sexual activity. Importantly, any consent obtained through fraud, force, fear, or intimidation is invalid, and any sexual activity occurring under such circumstances is likely unlawful. On the other hand, reasonable belief in consent means that the accused genuinely believed that the complainant was consenting, and that an objective, reasonable person, considering all available evidence, would also have believed that consent was given. Given that rape involves sexual penetration, it’s crucial to keep the Act’s definition of rape in mind. Considering section 3 and the definitions of rape and consent, let’s explore behaviours that would constitute rape. In all the following situations, we will assume that the complainant is not consenting, and the accused could not reasonably believe they were consenting.
Rape includes the insertion of a penis, finger, toe, or any other body part into another person’s vagina or anus. Furthermore, if an accused person inserts a sex toy into someone’s vagina or anus without consent or reasonable belief in consent, it also constitutes rape. Regrettably, there have been cases where other objects, such as a baton, knife handle, or even a candle, were inserted into a person’s vagina or anus without consent or reasonable belief in consent, and this too would likely be considered rape. It’s worth noting that in the past, rape was limited to the insertion of a penis into a vagina, and non-consensual anal penetration was addressed under Guyana’s Criminal Law (Offences) Act Cap 8:01, Laws of Guyana, as buggery.
Non-consensual oral sex is rape
As previously discussed, oral sex falls under the Act’s definition of penetration. Therefore, if an accused performs oral sex on a complainant, induces the complainant to perform oral sex on them, or involves a third party in oral sex, all without the complainant’s consent or reasonable belief in consent, it is likely considered rape. According to the definition, any contact (which can range from mere touching to using lips, tongue, or kissing) between the mouth of the accused and the genitals of the complainant, without consent or reasonable belief in consent, is rape. Interestingly, a High Court judge assigned to the sexual offences court in a 2019 article in the Stabroek News emphasised that the public often mistakenly believes that rape only involves a penis entering a vagina. This misunderstanding can lead to confusion among jurors when determining rape cases that don’t involve such penetration. It is essential to educate the public about the broader understanding of rape, which I wholeheartedly support through this column.
The Act specifies that the offence can occur for even a very moment and with minimal physical contact. As mentioned in a previous column, even unlawful penetration lasting for just 0.5 seconds constitutes rape.
Typically, during my classes or when facilitating discussions about rape, or elements and potential behaviours constituting rape, I encounter a constant stream of questions where attendees present various scenarios and ask if these would be considered rape. While I have no issue answering these questions, I usually advise listeners to focus less on hypothetical scenarios and more on the elements we have discussed. By understanding and applying these elements, individuals should be able to assess hypothetical situations themselves. That is my goal. However, I will conclude today’s column by listing a few scenarios that would likely constitute rape.
Throughout this and other columns, I use the term “may” constitute rape instead of “will” constitute rape because while we can make reasonable predictions about how a court case may unfold based on evidence and applicable laws, the actual outcome can differ for various reasons, which we won’t delve into here.
– If a man inserts any part of his body, including his penis, into a woman’s vagina or anus without her consent or reasonable belief in consent, this is likely rape.
– If a woman inserts any part of her body into a man’s anus, including her boyfriend’s or husband’s, without his consent or reasonable belief in consent, this is likely rape.
– If a woman forces her vagina into contact with a man’s mouth, including her boyfriend’s or husband’s, without his consent or reasonable belief in consent, this is likely rape.
– If a man causes his penis to touch or penetrate another person’s mouth without their consent or reasonable belief in consent, this is likely rape.
Chevy Devonish is an attorney-at-law. He is also a lecturer at the University of Guyana and a training consultant at Nations University. You can email him at chevydevonish@gmail.com
