Today I continue the series with a breakdown of sections 12 and 13 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (the Act).
Section 12 of the Act creates the offence of ‘causing a child under 16 years to watch a sexual act’. This is a ‘triable either way’ offence, which is an offence regarding which the Director of Public Prosecutions (DPP) can choose whether to have the accused tried in the magistrates’ court (a summary trial), or in the high court. The determining factor will likely be the seriousness of the offence, and while all such offences are serious, some can be more heinous than others. A person found guilty of causing a child under 16 to watch a sexual act, if found guilty, will be fined $1 million and imprisoned for five years if tried in the Magistrates’ Court, or, if tried in the High Court, imprisoned for ten years.
Section 13 of the Act creates the offence of ‘meeting a child under 16 years following sexual grooming’. This is also a ‘triable either way offence”. A person convicted of this offence in a summary trial must pay a fine of $1 million and serve five years in prison. If a person is tried and convicted on indictment in the high court, however, they may spend as much as ten years in prison.
Causing a child under 16 years to watch a sexual act
This offence is committed where the accused causes a person under 16 years to watch either the accused, the accused and a third party or parties, or to watch third party or parties engage in sexual activity. This offence is also committed where the accused caused the child under 16 to look at any image of a person or persons engaging in sexual activity. Importantly, the Act defines the term “image” to include moving or still images, including images of imaginary persons. The reference to images contemplates photographs while moving images refers to videos. Further, the Act does not say who or what an imaginary person is, but this is likely a reference to fictional characters in cartoons, anime, books, etc. As such, it is a crime to show children pictures or videos of real (the image may be of the accused, and or of third parties) or animated characters engaged in sexual activity. Including imaginary persons is important given the increasing prevalence of animated pornography, including parodies of classic cartoons. There are also Japanese pornographic animations referred to as Hentai which may depict non-humanoid characters engaging in sexual activities. Exposing a child under 16 to any of this would be an offence under section 12 of the Act.
Generally, it is irrelevant whether the child under 16 years consented to being shown these images or videos of sexual acts, unless the accused is close in age to the alleged victim. Once it is proven that a person did the conduct mentioned, they are likely to be found guilty of the offence. In a previous article, I explained what is meant by the term “sexual activity”. To prove the commission of this offence, the prosecution must prove that the accused caused the alleged victim to watch him or her, or third parties engage in sexual activities, or prove that the accused caused the child under 16 to watch an image or video of a person and or imaginary characters engage in sexual activities.
Meeting a child under 16 years following sexual grooming
The Act does not define the term “sexual grooming”. One accepted definition of “sexual grooming” is that it refers to the act by a person of building a relationship, trust and emotional connection with a child so they can manipulate, sexually exploit, and possibly abuse them.
The offence of ‘meeting a child under 16 years following sexual grooming’ is committed where a accused, having met or communicated with the child on at least two earlier occasions, meets the child or travels with the intention of meeting the child in any part of the world to do anything with or to the child, during or after the meeting, that would be an offence under the Act (such as rape, sexual activity, or causing that child to watch sexual acts, whether in person or via image or video). The accused must also not reasonably believe that the child is 16 or older. Put differently, the accused must believe that the child is below 16 years. There are a few things about this offence which must be pointed out.
It does not seem that the act of ‘sexual grooming’ itself is an offence, since the accused is required to i) meet the child after grooming, or ii) after grooming, travel with intentions to meet the child with the intention of raping, engaging in sexual activity with, or causing the child to watch a sexual act. Unless one of these additional steps are taken, there is no offence under section 13. If there is no meeting or travel with intention to meet to commit and offence under the Act, there is no crime under the Act. Another potential issue is that the Act does not define what “sexual grooming is”, which can create issues, as such grooming is the first conduct which must be proven, even if the accused later met with the child. Now, it is likely that the lawmakers intentionally did not criminalise grooming, given that it can be hard to prove. Still, this can be seen as a gap in the Sexual Offences Act, albeit one which is at least partially addressed by the Cyber Crime Act 2018 (the CCA).
Section 15 of the CCA creates the offence of ‘child luring’. A person commits this offence if that person uses a computer to “communicate with a child with the intent to induce the child to engage in sexual conversations or activities” (see section 15 (1) (a)) [this activity may be properly classified as grooming], or if the accused arranges to meet a child with the intention of abusing or engaging in sexual activity with the child or producing child pornography, regardless of whether the accused actually takes steps to meet the child. Section 15 therefore makes it a crime to talk to a child online with an intention to get the child to engage in sexual conversations or to engage in sexual activities. It also makes it a crime to even plan to meet with a child to engage in sexual activities. Unlike the offence of meeting a child under 16 years for sexual grooming under section 13 of the Sexual Offences Act, section 15 of the CCA does not require the accused to actually have met with the child. In this way, the CCA both criminalises what is, in essence, grooming conduct seemingly not caught by the Sexual Offences Act. Further, the CCA criminalises the “luring” of all children, which includes those who are 17 and 16 years old. This is important to note because the relevant offence under section 13 of the Sexual Offences Act only pertains to children under 16. I am unsure whether this was intentional, and there may be a need for clarifying legislation (an amendment), or for the court to clarify the application of these laws.
I did, however, say that the CCA only partially closes the gap. This is because the conduct described by section 15 of the CCA are only crimes if the accused tries to induce the child to engage in sexual conversations or activities, or makes plans to see the child to abuse or engage in sexual activity using a computer as the medium for these actions.
Nevertheless, as with all of the other minor-related offences under the Sexual Offences Act, sections 12 and 13 have been, and continue to be, effectively used as tools to deter certain conduct, and protect children in Guyana.
