Introduction
Today I will break down the offence of sexual assault, which is created by section 4 of the Sexual Offences Act, Chapter 8:03, Laws of Guyana (the SOA).
Under the Sexual Offences Act, sexual assault happens when an accused touches the alleged victim in a sexual way, causes the alleged victim to touch him or her in a sexual way, causes the alleged victim to touch a third party in a sexual way, or otherwise indecently assaults the alleged victim. Additionally, the alleged victim must not be consenting, and or the circumstances must be such that the accused cannot reasonably believe that the alleged victim is reasonably consenting.
A person found guilty of sexual assault is liable to conviction for five years if convicted on summary trial, and ten years if convicted on an indictment. Sexual assault is therefore a triable either way offence, which means it may be tried either summarily or on indictment, although this offence will usually be tried summarily.
One of the first things we should understand is how sexual assault is different from rape. When we examined the offence of rape, we saw that penetration is the physical action required for the offence of rape to take place. We also saw how the drafters of the SOA defined penetration to include a wide array of conduct, including but not limited to any degree of oral sex, and genital to genital touching by women. Sexual assault does not require penetration, but “sexual touching”.
Definition of “sexual” and “touching”
The SOA defines “sexual” to include touching or any other activity if a reasonable person would consider that it is sexual in nature, or, because of its nature, circumstances or purpose, it is sexual. This definition is important. “Touching” is defined to include touching with any part of the body, including a surgically constructed arm, penis, vagina, etc.
It also does not matter if the touching is done with a body part of a foreign object, or whether the person being touched or doing the touching is wearing clothes or anything else, or if they are naked. This definition may seem overly complicated but there have been cases where a person accused of sexual touching argued in defence that they were innocent because the touching was done with a prosthetic limb, or because the alleged victim was wearing very thick clothing or a uniform at the time of the touching.
When is touch sexual in nature?
At first blush, the answer to the above question may seem simple. But it often is not for various reasons. Are there some touches that are inherently sexual in nature? What determines this? Is it society specific, so that what is sexual in one society may not be regarded as sexual in another? Should a court consider this? Are there circumstances which may make a touch which is not inherently sexual, sexual? What are these circumstances? Does the touch have to be sexual in nature to the alleged victim or the accused? Both? Can a touch still be sexual if the purpose of the accused was not sexual gratification? Who is this “reasonable person” and how do we measure reasonableness? These are merely some of the questions which may arise for consideration in a case where a person is accused of sexual assault, and any or all of them may determine whether a court finds a person guilty of sexual assault. I cannot stress enough that a court will look at every shred of evidence available to it before it answers the question of whether sexual assault was committed. Such evidence may include the nature of the relationship between the parties, how long they have known each other, and whether they engaged in that kind of activity before. Let us examine some scenarios.
Scenarios
A woman is standing at a party. A man she does not know walks behind her, and as he passes, he touches and squeezes her behind. He then looks at her and smiles. The next day she reports to the police that she was sexually assaulted. Do the circumstances suggest that the touching was sexual, and does it seem that the man had a sexual purpose? From the few facts I created, it seems that all these questions could be answered in the affirmative, and the fact that the woman reported the occurrence suggests that she did not consent to it. The fact that she did not know him suggests that he could not believe that this was consensual. But this is an easy case.
Let us imagine that a man and a woman get close to each other to pose for a photograph. As they draw together, he moves his hand to place it on her lower back, but mis-averages, and rests his hand on her behind and does not really think about it. Some questions to ask here are: was the touching sexual in nature? Was the touching sexual because of the circumstances, and/or was the purpose of the touching sexual? Now, in my experience, Guyanese society generally regards the touching by one person or another’s behind to be of a sexual nature. But even if that is the case, was the purpose of the touching sexual gratification? Does it matter? In this scenario, it does not seem that way, and so the touching in this hypothetical is unlikely to be viewed as sexual assault, even though the other person was not likely consenting, and the person who did the touching could not reasonably believe that the person who was touched was consenting.
Let us examine a different scenario. John and Jane are workmates. One afternoon while talking at the water cooler, Jane tells a joke, and John laughs, and slaps Jane on the behind. Jane tells John that she did not and does not want him to touch her like that, and John says he means nothing by it, and does it to all his friends and workmates. Was this touching of a sexual nature despite the circumstances, and John’s reason for doing it? As said earlier, Guyana is a conservative society, and the touching of a stranger’s behind is likely to be considered sexual in nature. Let us assume we believe John did not intend to slap Jane’s behind for sexual gratification. Would this be sexual assault? It is difficult to say for certain, but it is possible that John could be found liable for sexual assault in this case, if only for the fact that people just assume that casually touching that part of a person’s body is unacceptable. The definition for “touching” does say that if a reasonable person would consider that the touching is sexual despite the circumstances and the purpose of the accused, then that touching is sexual. The reality is that neither sex can be allowed to go about touching people’s behinds where they do not share those relationships, as by its very nature, that part of the body is considered to be sexual.
In another hypothetical, imagine a man and a woman are on a first date at a popular restaurant. They are seated near each other and are engaged in conversation. While they are talking, she slides her hands up his thigh and close to his private parts. He immediately removes her hand and asks her why she would do that when they barely know each other. Is this touching sexual? Would a reasonable person in Guyana consider that touching to be of a sexual nature? Would they also say that the circumstances were sexual, and that the woman’s purpose was also some sexual objective, even if it ended at exactly what she did? What if to her, the touching was not sexual? Have they talked about such touching before, so that she assumed that such touching would be okay? Do you think she sexually assaulted him?
These scenarios were not created to be answered definitively. In any case, the questions I have asked may be woefully insufficient to allow a court to determine guilt, although it is quite possible that courts only have this limited information to go on. What I hope these scenarios do, however, is demonstrate to the public how the question of whether a person is a guilty of sexual assault can become complicated. In the next instalment, we will dive deeper into this offence.
Chevy Devonish is an attorney-at-law, lecturer at the University of Guyana, and training consultant. He can be reached at chevydevonish@gmail.com.
