In earlier articles I explained that in Guyana, the age of consent (that is, the age at which a child can consent to sexual activity) is 16 years, and that as such, it is generally a criminal offence to engage in sexual activity, including intercourse, with a child under 16 years. I also explained that under Guyana’s laws, any sexual activity with a child under 16 is an offence even if the child consented, since the law does not recognise children as being capable of consenting to sexual activity. As such, generally, once a person is proven to have engaged in sexual activity, including sexual intercourse, with a child under 16, it is practically certain that they will be found guilty of an offence.
There are, however, exceptions to this general rule: the close-in-age laws, also known as the Romeo and Juliet laws. In a previous article I pointed out that sexual experimentation among children is quite common, and the age of sexual debut is getting lower among boys and girls. This is due to several factors, including sexual curiosity and reaction to new feelings promoted by hormones. In light of this reality, our lawmakers have decided not to criminalise consensual sexual activity, including sexual intercourse, among curious children within certain age ranges. The laws which create these exceptions are called close-in-age laws, as they offer a defence to children or persons who are close in age to children. These laws are also referred to as the Romeo and Juliet laws, after Shakespeare’s famous fictional teenage ‘lovers’ Romeo and Juliet. Juliet, said to be under 14 years at the time, faked her death to avoid an arranged marriage because she wanted to be with Romeo. After learning of her ‘death’, Romeo drank poison and died. When Juliet awakened to find Romeo dead, she then killed herself. Interestingly, their ages were not among the things which drew interest, perhaps since it was common practice in the 14th century.
Close-in-age defence
Under the Sexual Offences Act, the close-in-age defence applies to children (alleged victims) in two separate age brackets: 12 years – 14 years, and 14 years to 16 years.
Where the alleged victim is 12-14 years
If a person is accused of any offence under the Sexual Offences Act related to a child between 12 years and 14 years, and that child (alleged victim) consented to the sexual activity, the accused can raise as a defence that he is less than two years older than the child (under 14 years to under 16 years). For example, if a 12-year-old engages in sexual activity or intercourse with another child who is 13 years, this sexual interaction is not seen as a criminal offence, although it may still be frowned upon from a social perspective. The same cannot be said where a 19-year-old has consensual sexual intercourse with a child who is 12 years.
The accused would also have to show that he or she is not in a position of trust or authority toward the alleged victim; that he or she is not a person with whom the alleged victim is in a relationship of dependency; and that he or she is not in a relationship with the alleged victim that is exploitative of the alleged victim.
Where the alleged victim is 14-16 years
If a person is accused of any under the Sexual Offences Act related to a child between 14 years and 16 years, the accused can raise as a defence that he is less than four years older (that is, under 17 years to under 20 years). As such, if a person who is 17 years engages in consensual sexual activity, intercourse with a person who is 15 years, this may not constitute rape or sexual activity with a child under 16 years. Of course, the other requirements, including that the accused not be in a position of trust, also apply to children in this age range.
The close-in-age defence or Romeo and Juliet law is a complete defence for any person who falls within the age brackets provided for. If an accused proves that the sexual interaction was consensual; that they are close in age to the alleged victim; and that the accused was not in a position of trust, this should lead to an acquittal.
Again, these laws do not mean that lawmakers agree with, and encourage sexual activity, including intercourse among children of the mentioned groups. They are also not seeking to protect those who would seek to prey on our children Instead, our lawmakers have recognised that it is seemingly impossible to prevent children who are close in age from engaging in sexual activities, including intercourse, with each other, and sought not to criminalise that aspect of their interaction, while also seeking to protect them from those who would seek to exploit them.
It is also clear to see that the law makes no exceptions where any accused person, regardless of how close in age, engages in sexual activities with children under 12 (11 and younger). Any person, including any child, who engages in such conduct with a child who is 11 and under are subject to the strict provisions of sections 10-13 of the Sexual Offences Act: it is irrelevant whether a child that age (under 12) consented, because their consent is not recognised by the law.
Do you agree with the close-in-age exceptions? Let me know.
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 contact Mr Devonish at chevydevonish@gmail.com.
