Breaking Down Sexual Offences
It is common for people to drink alcohol and/or use various types of substances (including controlled/illicit substances) to enhance their party experiences. When men and women, at parties or in private, consent to, and knowingly take substances to enhance their experiences, including sexual experiences, this is quite fine.
However, given the way such substances are known to affect our judgement and decisions, how does the law treat with cases where one person gives another a substance without their consent and or knowledge?
In Guyana, section 32 of the Sexual Offences Act, Cap: 8:02, Laws of Guyana (the SOA), expressly criminalises conduct it describes as “administering a substance with intent.”
The core offence – Giving someone a
substance without their consent
Section 32 (1) of the SOA provides that “a person commits the offence if the accused administers a substance to, or causes a substance to be taken by another person knowing that the person does not consent (section 32 (1) (a) of the SOA).
The “substance” referred to in the law can be any substance which has the effect of “overpowering” or “stupefying” the victim (we define stupefy lower in this article). Such substances can include any brand/kind of alcohol, ecstasy, GHB (liquid ecstasy), ketamine, etc. On this note, this provision assumes additional importance given that from time to time there has been an uptick in the sale of ecstasy to and by high school children. Further, some are saying that there has been a general increase in the use of “club drugs”, including for “date rape”.
Secondly, the person administering the substance without the consent of the victim must have “the intention of stupefying or overpowering the [victim] to enable any person to engage in a sexual activity that involves the victim”.
Importantly, if any of these substances (whether the substance is legal or illegal) are consumed with knowledge and consent, there is no question of this specific offence being committed.
This does not, however, mean that if a person consents to consuming such a substance, they automatically consent to any sexual activity which follows, including penetration. Where a person willingly becomes so drunk that they “pass out” or cannot perceive what is taking place, they cannot consent to sex, and any person who has sex with a person in that state commits an offence.
There must be an intention.
The Oxford Online dictionary defines the term “stupefy” to mean “to make someone unable to think clearly. The Merriam-Webster online dictionary defines the same term to mean “to make stupid, groggy, or insensible.”
The offence of administering a substance with intent is therefore committed where a person, for the purpose of having sex with another, or causing them to have sex with someone else, gives, or causes the victim to take a substance without the victim’s consent, with the intention that the substance will make the person groggy, insensible, or otherwise unable to think clearly. As is clear, the intention is that the substance will render the victim more willing to have sex, or at least less likely or unable to resist.
Unfortunately, a person who takes a substance described above without their consent may agree to, or at the least may not resist, sexual advances. Given the fact that, in law, drunken consent can still be consent, Parliament has intervened here to protect people who are made to consent under these nefarious circumstances.
Consider that Jake and Jess are out on a date. They are both drinking large amounts of alcohol, but Jess is known to ‘hold her alcohol’. However, when Jess goes to the bathroom, Jake slips a substance into her drink which is intended to stupefy her. He also does this because he wants to guarantee that he will be able to have sex with her later. Later, because of the substance, Jess is more amenable to Jake’s sexual advances, and engages in intercourse with him. By doing this, Jake has committed two offences: i) rape, under section 3 of the SOA, and ii) administering a substance with intent. Even if he ends up not engaging in intercourse with Jess, Jake has still committed the latter offence.
Let us consider a different scenario. Jake and Jess have been dating for two months, but Jess has declined all of Jake’s attempts to engage in intercourse. Jess thus devises a plan. He takes her to a new bar which he says sells ‘mocktails.’ While at the bar, Jake buys several drinks for Jess which he tells her are alcohol-free, but they contain alcohol. He does all this to increase the likelihood that Jess will agree to have sex with him later, or, at the least, that she will not resist. This is also an offence, even if they ultimately end up not engaging in intercourse.
The serious nature of these offences is reflected in the sentences to be dished out if a person is found guilty. A person found guilty on summary trial is liable to a fine of $1 million and imprisonment for five years, while a person convicted on indictment is liable to imprisonment for ten years.
It is uncertain when this conduct became an issue in Guyanese society, but it is clear that Parliament is aware of it, and has sought to protect the public.
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.
