Today, we will dissect two of the most crucial provisions under the Sexual Offences Act, Cap 8:03, Laws of Guyana (the Act), which criminalise specific sexual conduct involving children.
Section 16 of the Act establishes the offence of “rape of a child under 16 years,” while Section 17 creates the offence of “sexual activity with a child under 16 years.”
“Rape of a child under 16” is self-explanatory. It pertains to cases where an accused person engages in penetration (see explanation of penetration here). “Sexual activity with a child under 16” is similarly self-explanatory. In considering these offences, we will mention, but not apply the close in age defences. As such, we will assume that the discussion pertains to any accused person who is 19 or older. We will examine and apply the close in age defences in a separate article.
Importantly, the Sexual Offences Act does not explicitly state that the age of consent is 16 and that a child under 16 is incapable of giving consent to sexual activity or sexual intercourse. These legal realities are deduced from certain sections, including sections 16 and 17. Additionally, the Marriage Act, considered as setting the age of consent, merely stipulates that, generally, a marriage is void if either of the parties is under the age of 16 years.
The offences of rape or sexual assault of a child under 16 mirror the offences of rape and sexual assault, with the main distinctions being that the victims are always under 16 years old. When these matters are prosecuted, questions regarding whether the child consented or whether the accused reasonably believed there was consent become irrelevant because the law does not acknowledge the consent of persons under 16 years for sexual activity, including sexual intercourse. Section 9 of the Act states that for “offences under sections 10-26 (which include rape of a child under 16 and sexual activity with a child under 16), it is not necessary for the prosecution to prove that the complainant did not consent, and belief in consent (whether reasonable or not) is not a defence. This means that when a court is trying to determine whether a person is guilty of rape of a child under 16, or sexual activity with a child under 16, the question of whether the child gave consent is irrelevant, and the accused cannot claim that they reasonably believed the child was consenting. These provisions do not apply to children who are 17 or 16 years old. Any allegations that a 16 or 17-year-old was raped or sexually assaulted are dealt with under sections 3 and/or 4, even though they are not yet adults (18 years).
To clarify, it is not that children under 16 are incapable of consenting to sexual activity, including sexual intercourse. Children under 16 can (and often do) give consent to sexual activity, including sexual intercourse. UNICEF, in a 2018 Situation Analysis of Adolescent Pregnancy in Guyana revealed that five (5) percent of women surveyed had their sexual debut before age 15. Whether or not they should, children often engage in sexual experimentation with other children or older persons. Many go beyond experimentation. The Act refrains from criminalising consensual sexual experimentation among children of a certain age, a criminal offence by virtue of the “close in age defences” at sections 14 and 15 of the Act.
Another controversial law recognises early sexual debut in children. Section 32 (2) of the Marriage Act, Cap 45:01, Laws of Guyana states that if a female child under 16 years becomes pregnant or delivers a child of a person over 16 years, she may apply to the High Court for permission to marry that person, if he either admits to being the father, or the court finds him to be the father. This provision of the Marriage Act does not expressly state that it only applies if the pregnancy resulted from consensual sexual intercourse, but this is implied. Still, this provision is controversial as it can be, and has been seen as providing a ‘way out’ for a person who, but for this procedure, would otherwise be guilty of rape of a child under 16 years under the Sexual Offences Act.
These provisions show that lawmakers in Guyana recognise that children under 16 often do, in fact, give consent to sex. However, lawmakers are of the view that early sexual debut can be detrimental to children for various reasons. Sexual intercourse can lead to pregnancy, which can cause young girls to drop out of school. Many do not return, jeopardising their socio-economic situations for years, or even the rest of their lives. Early sexual activity can also cause health complications, and even cervical cancer for young girls. Additionally, children under 16 are not regarded as mature enough to consider all the implications of sexual activity, including sexual intercourse, and can fall prey to sexual predators seeking to exploit them. As such, for their own safety, the law has intervened to strip children under 16 of their ability to legally consent to such activities. It is for this reason that the offence of rape of a child under 16 years is popularly referred to as ‘statutory rape,’ though the term statutory rape is not found in the Act. The term means that the conduct is not necessarily considered rape because the child did not consent (though this can be, and is sometimes the case), but because the statute says that whether the child consented is irrelevant to the question of whether the accused is guilty of the offence.
To prove the offence of rape of a child under 16 years, the prosecution only must prove that the accused engaged in penetration of the child or caused the child to engage in penetration with another person, and that when this happened, the accused was not close in age to the child. To prove the offence of sexual activity with a child under 16, the prosecution must only prove that the accused touched the child sexually or caused the child to perform a sexual act on himself or herself or caused the child to engage in sexual touching with a third party. The close-in-age exceptions will apply to sexual activity with a child under 16 years only if the alleged victim consented, and where the accused (and a third party if there is one) are covered by the close-in-age exception.
These provisions exist and work toward protecting Guyana’s children under 16, at least on paper. While there are several cases in which accused persons have been convicted for these offences, it does seem that local culture can, and sometimes does pose a barrier to this protection. Guyanese tend to consider young children who either seek or receive sexual attention from men as ‘force-ripe’, despite the differences in age, maturity, power, and the ability to influence/manipulate. As such, there are many Guyanese who do not think it rape for an adult man to engage in sexual intercourse with a consenting child under 16 years. It is not farfetched to assume that such persons have found themselves on juries. In fact, I know of at least one case where a man accused rape of a child under 16 years was acquitted even after both the prosecution and judge explained to the jury that if they found that the man had sexual intercourse with the child, they should find him guilty of the offence. It seems that the jury was convinced that if the child consented, it could not be rape. This is a misconception which I seek to change through this column.
Mr Chevy Devonish is a Senior Legal Advisor with the Attorney General’s Chambers and Ministry of Legal Affairs, and a Part-time Lecturer at the University of Guyana. You can contract Mr Devonish at chevydevonish@gmail.com.
