Breaking Down Sexual Offences
This week I will be breaking down section 33 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (the SOA), which creates the offence of committing an offence with intent to commit a sexual offence.
In many cases, perpetrators only engage in conduct which constitutes a sexual offence, and, therefore, they are charged and tried for the specific criminal offence or offences.
It is common, however, for perpetrators to commit additional offences before or during the sexual offence to enable them to commit the sexual offence. The above stated sexual laws recognise and criminalise such conduct in addition to the sexual offence to ensure offenders are punished as severely as possible.
As such, where a person commits an offence with the intention of committing a sexual offence, and then actually commits a sexual offence, that person has committed two separate offences, and will be charged and prosecuted for two different offences. However, if a person commits an offence with the intention of committing a sexual offence, but for some reason does not end up committing the sexual offence, he or she can still be charged and prosecuted for the latter offence.
The core offence
Section 33 of the SOA creates the offence or committing an offence with intent to commit a sexual offence. Section 31 (1) provides that a person commits this offence if they commit any offence with the intention of committing any offence under the SOA.
Offences usually committed with intent to commit a sexual offence
There are several offences which are commonly committed with the intention of committing a sexual offence like rape or sexual assault. These offences include, but are not limited to: i) kidnapping, ii) false imprisonment, iii) assault, and iv) wounding.
Indeed, it would not be surprising to hear that a person accused of rape or sexual assault kidnapped, falsely imprisoned (locked up), assaulted and or wounded a person they raped, sexually assaulted, or attempted to rape or sexually assault.
Notably, these are all offences under other Acts or at common law (judge made law). Kidnapping is an offence under the Kidnapping Act, Cap 10:05, Laws of Guyana, and false imprisonment is an offence at common law. Additionally, assault and wounding are offences under both the Summary Jurisdiction (Offences) Act Cap 8:02, Laws of Guyana, and the Criminal Law (Offences) Act, Laws of Guyana.
Now, the term “kidnapping” is not defined in the Kidnapping Act, but the Act does refer to “abduction”, which seems to be intended to refer to kidnapping. “Abduction” is defined as ‘using force or fear to induce a person to go from any place.’
At common law, false imprisonment refers to the ‘unlawful, intentional, or reckless restraint of a person’s ability to move from a place’ (see R v Rahman (1985) 81 Cr. App rep 349).
Interestingly, the Kidnapping Act does not refer to “false imprisonment”, but it does create the offence of “wrongful confinement”, which is defined as ‘restraining a person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits.’ It does seem here that Parliament intended to speak to “false imprisonment” but given the fact that statutes such as these are interpreted literally, it is possible that a court would not interpret “wrongful confinement” to include “false imprisonment.”
In any case, since these offences are committed with the intention of committing a sexual offence, they are, in those contexts, also considered sexual offences. As such, if a person kidnaps a person and then rapes them, that person would be charged with rape under section 3, as well as committing an offence (kidnapping or false imprisonment for example) with the intention of committing a sexual offence under the SOA. They ought not, in these circumstances, to be charged under the Kidnapping Act.
Sentences
Section 33 (2) provides that a person who commits offences or kidnapping or false imprisonment with the intention of committing any sexual offence under the SOA faces a sentence of imprisonment for life.
As such, where a person kidnaps a person, and then rapes them, they face two life sentences, since offences carry a sentence of life imprisonment. If a person kidnaps a person with the intention to rape that person, but does not eventually rape them, that person still faces life imprisonment for the kidnapping with intent to rape.
It is critical to note that under section 4 of the Kidnapping Act, the sentence for the offence of abduction is a fine of $750,000, and imprisonment for life. Therefore, it seems pellucid that Parliament intended that the act of kidnapping should assume a significantly more serious nature where it is done with the intention of committing a sexual offence.
The sentences are less severe where the offence is done with the intention of committing a sexual offence does not include kidnapping or false imprisonment. In those circumstances, a person guilty of this offence faces a fine of $1 million and imprisonment for five years on summary conviction, and imprisonment of ten years if convicted on indictment.
Conclusion
This provision demonstrates the complexity of sexual offences, and Parliament’s awareness of and its commitment to taking adequate legislative steps to address this complexity. With appropriate enforcement, the result will invariably be better protection against, and stricter punishment for sexual offences.
