Voyeurism
Last week we examined the offence of exposure of the genitals under section 28 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (SOA), we learned it is an offence for a person to intentionally expose his genitals to another with the intention that the person who sees will be alarmed of distressed. We also learned that because of the working of the provision, if any exposure of genitals is unintentional or not intended to cause alarm or distress (or neither), this conduct does not constitute a sexual offence.
This week, we will examine section 29 of the SOA, which criminalises the offence of voyeurism. Now, the legislation does not define the term voyeurism, but the conduct which constitutes voyeurism is made clear. This provision is crafted to penalise individuals who, driven by the pursuit of sexual gratification, violate another’s privacy through various means including observation, recording, and the use of voyeuristic devices.
The core offence explained
Section 29 of the SOA explicitly outlines the offence of voyeurism in a multipart format, delineating the specific actions and intentions that constitute the criminal act. Under subsection 29(1), the offence is committed under several circumstances:
According to section 29 (1) (q) of the SOA, the offence is committed if the accused intentionally observes another person, referred to as the “complainant”, engaging in a private act, for the purpose of obtaining sexual gratification, without the complainant’s express consent to being observed for such a reason.
According to section 30 of the SOA, a person is said to be engaging in a private act if they are in a place which would reasonably be expected to provide privacy, and: i) the person’s genitals, buttocks or breasts are exposed or covered only in underwear (see section 30 (1) (a) of the SOA); ii) the person is using a lavatory (See section 30 (1) (b) of the SOA); or iii) the person is involved in a sexual act that is not of a kind ordinarily done in public (see section 30 (1) (c) of the SOA).
Such conduct may include ‘peeping’ at a person changing clothes in a bedroom, a room for medical examinations, a hotel room, or a toilet or any toilet-like facility.
According to section 29 (1) (b) of the SOA, a person also commits the offence of voyeurism by installing equipment or modifying structures to facilitate observation under section 29 (1) (a). This part of the legislation acknowledges, and criminalises preparatory actions, so that even if there is no actual observation, the actions that were taken to facilitate observation are enough to constitute the offence. Such conduct may include drilling or otherwise creating holes or installing cameras or other surveillance devices in the types of places described in section 30 of the SOA.
According to section 29 (1) (c) of the SOA, operating equipment to enable a third party to observe a complainant engaging in a private act for sexual gratification, without the complainant’s consent also constitutes voyeurism. Admittedly, it is unclear what conduct may constitute this offence, but perhaps it includes cases where the accused operates machinery to allow a third person to observe a person in a private place.
Finally, section 29 (1) (d) provides that the act of recording a private act of a complainant, with the intention that such recordings will later be viewed for sexual gratification by the accused or a third party, is criminalised. This subsection captures the technological means through which voyeurism can be facilitated. Such conduct may include utilising a camera to record or to stream the content to allow its consumption by third parties. Importantly, even if the person who operates the equipment is not the person who installed the equipment, and even if the person who operates the equipment does not consume the content, that person still commits an offence.
Intent and consent: the dual pillars of the offence
As each subparagraph under section 29 (1) makes clear, a critical element in this offence is the dual requirement of intent and lack of consent. The accused must act with the specific intent to obtain sexual gratification from the voyeuristic activity, or the third party (under section 29 (1) (c) and (d) enabled by the accused must intend to obtain sexual gratification. Moreover, the voyeuristic act must be conducted without the express consent of the complainant, who must be unaware of or non-consenting to the act being observed or recorded for the specified purpose.
Penalties for violations
Section 29(2) of the SOA prescribes stringent penalties for those found guilty of voyeurism: on summary conviction, the offender faces a fine of $500,000 and up to two years’ imprisonment; while on conviction on indictment, the term of imprisonment can extend to five years.
These penalties underscore the law’s intent to deter such behaviour and safeguard the privacy and dignity of individuals against unsanctioned sexualised observation or recording.
Conclusion
Section 29 of the SOA is a pivotal legal mechanism designed to uphold personal privacy and maintain public decency against the invasive act of voyeurism. By setting clear legal parameters and severe consequences for violations, the provision stands as a testament to the legislative commitment to protecting individuals from exploitation and harassment in their most private moments. This law not only penalises but also acts as a significant deterrent against the perpetration of voyeuristic acts in Guyanese society.
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 Devonishat chevydevonish@gmail.com.
