Of the offences outlined in the Sexual Offences Act aimed at protecting children, section 18, titled “Sexual Activity with a Child by Abusing a Position of Trust,” is undoubtedly one of the most crucial. Notably, this offence applies to all individuals under 18 years old, irrespective of the age of consent being 16 years old.
For a person to be convicted of this offence, three conditions must be met.
Firstly, the Act stipulates that a person is guilty of the offence of sexual activity with a child under 18 years of age by abusing a position of trust when: i) engaging in sexual activity with a child, ii) inducing the child to engage in sexual activity with a third party, or iii) compelling the complainant to perform sexual acts, including inducing the child to masturbate.
Secondly, the accused must hold a position of trust in relation to the child as defined in section 19 (1) (a)-(c) of the Sexual Offences Act (which outlines circumstances establishing a position of trust) and not be in such a position due to other circumstances.
Finally, the accused must be aware, or reasonably expected to be aware, of the circumstances establishing their position of trust in relation to the complainant.
If these conditions are proven, it is presumed that the accused was aware or could reasonably have been expected to be aware of the circumstances establishing their position of trust, unless evidence is presented to suggest otherwise (refer to section 18 (2) of the Sexual Offences Act).
This is a grave offence carrying severe penalties. If the accused, in a position of trust, engages in sexual activity involving penetration, they must be tried on indictment, and if found guilty, face life imprisonment (section 18 (3) (a)). However, if the accused engages in sexual activity without penetration, it is a triable either way offence. The Director of Public Prosecution (DPP) will decide whether to treat the offence as indictable or summary, based on the circumstances and severity. If tried summarily and found guilty, the sentence includes a fine of $1 million and imprisonment for five years; if tried on indictment and found guilty, the sentence is imprisonment for ten years.
Having examined the elements of the offence, let us now consider the circumstances under which the law deems an individual to be in a position of trust.
Section 19 (1) (a) states that an individual is in a position of trust if they are responsible for a child detained in an institution by court order or law. Children may find themselves in various facilities under court orders or laws, such as juvenile detention centres or the homes of relatives for protective custody. In such cases, anyone involved in the child’s care is in a position of trust and commits an offence by engaging in sexual activity with the child.
Section 19 (1) (b) specifies that a person is in a position of trust concerning a child under 18 if they care for individuals, including those accommodated in hospitals, clinics, care homes, or orphanages. This provision covers a broad range of circumstances, acknowledging the vulnerability of children in medical settings. Children in these settings may be physically or mentally fragile, making them easy targets for exploitation. Moreover, they may place complete trust in medical professionals, who could abuse their authority under the guise of medical procedures or tests.
Children in residential care, community homes, children’s homes, or orphanages are also at risk. These facilities typically cater to children without families who seek love, affection, and validation. Caregivers in these environments may easily gain a child’s trust and exploit it for sexual activity, facilitated by the nature of their roles and the prolonged exposure to the children they care for.
In all these circumstances, individuals responsible for caring for children are near them and are well-positioned to gain their trust. Trust-building between caregivers and children is not only inherent in these arrangements but is also essential for their success, regardless of their objectives.
Sections 18 and 19 of the Sexual Offences Act establish a comprehensive framework to protect children from sexual exploitation, especially by those in positions of trust. This legislation underscores the critical importance of safeguarding the inherent vulnerability of children in institutional and caregiving settings. By defining specific circumstances constituting a position of trust and outlining conditions under which sexual activity in such contexts is unlawful, the law aims to deter potential offenders and ensure severe legal consequences for those who exploit their positions of trust. It reflects the state’s commitment to prioritising the safety and well-being of its youngest members, emphasising that protecting children from sexual abuse and exploitation is paramount. Through such legal measures, the state aims to cultivate environments where children can thrive without fear of sexual predation.
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.
