Over the next 4 or 5 weeks we will examine and break down provisions under the Sexual Offences Act, Cap 8:03, Laws of Guyana (“the SOA)” which exist to protect vulnerable adults. These provisions include sections 23-26 of the SOA.
This week, we will break down section 23, which deals with a particularly egregious form of sexual exploitation – obtaining sexual activity from individuals with mental disorders through inducement, threat, or deception. This provision aims to safeguard some of the most vulnerable members of our society from those who would take advantage of their mental conditions for sexual gratification.
Understanding the Core Offence
Section 23(1) outlines the core offence, which can be understood through three primary components: the accused, the act, and the complainant’s mental state.
The accused in this offence is the perpetrator or the person who allegedly committed the prohibited conduct.
Section 23 (1) (a) (i) – (iii) provides that the criminal conduct in this case is committed where the accused, even with the agreement of the complainant, engages in sexual activity directly with the complainant, causes or incites the complainant to engage in sexual activity with a third party, or causes the complainant to perform sexual acts, including, but not limited to masturbation. It is crucial to note this section makes it clear that the accused who engages in any of this conduct commits an offence even if the complainant agrees to engage in this conduct with him or her. This is so because the law presumes that a person with a mental order does not have the capacity to properly consent to such activities. Consent therefore is not a defence to the commission of this offence.
Section 23 (1) (b) states that the offence is also committed where the accused engages in this kind of sexual conduct with a person with a mental disorder by inducement, threat, or some deception. This section is self-explanatory. Essentially, if someone threatens a person with a mental illness to engage in sexual activity with them, tricks them into sexual activity, or induces them into engaging in sexual activity with them, an offence is committed.
Section 23 (1)(c) specifies that in both cases under subparagraphs (1) (a). and (b), the complainant must have a mental disorder, and the accused must know this, or based on the circumstances, he can be reasonably expected to know that the complainant has a mental disorder. This element is essential.
To illustrate, consider: John, who is aware that his neighbour, Jane, has been diagnosed with a severe form of bipolar disorder, offers her money in exchange for sexual favours during one of her manic episodes. In this scenario, John’s actions would constitute the offence outlined in Section 23(1), as he has obtained Jane’s agreement to engage in sexual activity through an inducement (money), despite knowing about her mental disorder.
Inducement, Threat, or Deception
Subsection (1)(b) outlines how the accused obtains the complainant’s agreement: inducement, threat, or deception. These terms are not explicitly defined in the Act, but their common meanings can provide guidance.
An inducement typically refers to an offer or reward intended to persuade or influence someone’s actions. For example, an accused might promise the complainant money, gifts, or favours in exchange for sexual activity.
A threat, on the other hand, involves intimidation or the suggestion of adverse consequences if the complainant does not comply. This could take the form of physical harm, reputational damage, or other forms of coercion.
Deception encompasses any act of deceiving or misleading the complainant, such as lying about the nature of the sexual activity or misrepresenting the accused’s intentions.
Penalties
The penalties for violating Section 23 vary depending on the nature of the sexual activity involved.
Subsection (2) addresses cases where the sexual activity involved penetration. In such instances, the accused is liable, upon conviction on indictment (more serious charges), to life imprisonment. This severe punishment reflects the gravity of the offence and the harm inflicted on the complainant.
For cases not involving penetration, subsection (3) outlines two potential penalties:
1. Upon summary conviction (less serious charges), the accused may face a fine of up to $1 million and imprisonment for up to five years.
2. Upon conviction on indictment, the accused may be sentenced to imprisonment for up to 14 years.
These penalties underscore the seriousness with which the law regards the exploitation of individuals with mental disorders for sexual purposes, regardless of the specific nature of the sexual activity.
Legal and Social Implications
Section 23 operates within a complex intersection of law, mental health, and societal values. Its existence reflects a recognition that individuals with mental disorders are often vulnerable and deserve special protection from exploitation and abuse.
Beyond its legal ramifications, this provision carries significant social implications. It sends a clear message that exploiting someone’s mental condition for sexual purposes is unacceptable and will be met with severe consequences. This stance serves to safeguard the dignity and autonomy of individuals with mental disorders, promoting a more just and compassionate society.
Moreover, by criminalising such conduct, Section 23 aims to deter potential offenders and raise awareness about the importance of respecting the boundaries of consent, particularly when dealing with individuals who may have diminished capacity to make fully informed decisions.
Conclusion
Section 23 of the Sexual Offences Act represents a crucial step in protecting some of the most vulnerable members of our society from sexual exploitation. By delineating the offence, outlining the means by which it can be committed, and imposing severe penalties, the law seeks to address the complexities of obtaining sexual activity from individuals with mental disorders through improper means.
While the provision itself is clear in its intent, its effective implementation may face challenges, particularly in cases where the complainant’s mental condition is not readily apparent or the accused claims ignorance. Nonetheless, the existence of this provision serves as a powerful deterrent and a statement of our society’s commitment to safeguarding the rights and dignity of all individuals, regardless of their mental state.
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.
