This week we turn our attention to and will break down a particularly sensitive and complex provision: Section 22 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (the SOA). This section targets sexual offences occurring within families, marking a crucial step towards addressing and mitigating these kinds of crimes. Such offences, along with the offence of sexual activity with child family members at section 16 of the SOA, are commonly referred to as incest.
Understanding the Core of Section 22
Section 22 sets the legal boundaries concerning sexual relationships among adult family members, identifying the circumstances under which such actions cross the threshold into criminal conduct.
Subsection (1): The Core Offence
The core offence, as outlined in subsection (1), can be understood through three primary components: The accused, the act, and the relationship between the accused and the victim. It is important to point out that this offence pertains to perpetrators who are 16 years or older. As such, it does not seem that a child under 16 years can be charged with this offence. In fact, in such a case, the adult family member(s) with whom the child under 16 years engages in sexual penetration is likely to be the one(s) charged and prosecuted under section 16 for sexual activity with a child family member.
As such, a person 16 years or older who engages in sexual penetration with an adult family member they are related to as a parent, grandparent, child, grandchild, sibling, uncle, aunt, nephew, or niece while knowing, or being reasonably expected to know that person to be a relative described by the SOA commits this offence of sex with an adult family member.
To demonstrate, consider that John, aged 20, engages in a sexual relationship with Jane, aged 19. Also consider that John and Jane are first cousins, a fact both are aware of. According to Section 22, this act constitutes a criminal offence due to their age, the nature of their relationship (they are cousins), and their awareness of this familial bond. Both family members who engage in this kind of activity can be charged and convicted for the commission of this offence.
Importantly, in these cases, it does not matter that the parties consent to their sexual activity. Indeed, if any family member over the age of 16 engages is sexual activity with an adult family member without their consent, they may be charged with both rape, under section 3, and sex with an adult family member under section 22 of the SOA.
Subsection (2): Presumption of Knowledge
This subsection introduces a critical presumption: if it is proven that the accused was related to the complainant in them manner(s) outlined at paragraph 22 (1) (b) of the SOA, the law assumes that the accused knew or should have known of the relationship, unless evidence suggests they might not have been aware.
For instance, Jane and John are born to the same parents but Jane was adopted by a different family. Later, when both are adults, Jane meets John and they enter into a sexual relationship, only later learning that they are biological siblings. In such a case, if either of them is accused of this offence, they would be able to show that they were unaware of the nature of their relationship, and only became aware of it afterward. This would rebut the presumption, proving their innocence.
Nevertheless, the rationale behind the legal presumption is that persons who share the relationships mentioned in section 22 are likely to know of this relation. As shown, however, this does not mean that at least some such relatives, particularly cousins, and even siblings, may be unaware of their relationship due to family events or family dynamics. In any case, once the prosecutor provides that there was a sexual relationship between relatives described in section 22, the accused then has a responsibility to prove his or her lack of knowledge about the familial ties. I would add that the provision places an obligation on all persons in Guyana to, before entering a sexual relationship with anyone, ensure they are not related in the manner outlined at paragraph 22 (1) (b) of the SOA.
Interestingly, when I was little, my mother would often say that I should attend family events to become aware of my relatives. This, she said, would reduce the likelihood that I would strike up a relationship with a relative without realising it.
Subsection (3): Penalties
The consequences of violating section 22 are severe, mirroring the gravity of the offence. The law distinguishes between two types of convictions—summary conviction and conviction on indictment—with penalties ranging from a significant fine to imprisonment. These stringent penalties serve as a deterrent against sexual offences within the family, underscoring the law’s intent to protect individuals from such harm.
Legal and Social Implications
Section 22 operates within a delicate area of law, where family relations intersect with legal boundaries. Its existence is a testament to the nuanced understanding that sexual offences within the family are not only a violation of the law but a breach of public morality. Additionally, there are also serious considerations for public health, as it is well recorded that children born to relatives, particularly close relatives, tend to have serious genetic defects. More than just affecting public health, this poses risks to the quality of life of the individual. The State has an interest in addressing all these issues, so that the issue is not just one of morality.
Conclusion
Section 22 of the SOA represents a critical component of Guyana’s legislative framework against sexual offences, specifically targeting the complexities of sexual relations within the family. By delineating the offence, presuming knowledge of familial ties, and imposing significant penalties, the law aims to prevent consensual and non-consensual sexual relationships between close relatives. Given the nature of such offences, however, enforcement is likely to prove difficult.
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.
