Breaking Down Sexual Offences
This week we will examine an offence which is like, or an example of last week’s offence.
Section 34 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (SOA) creates the offence of “trespass with intent to commit a sexual offence”. As you will recall, last week we examined section 33 of the SOA, which creates the offence of “committing an offence with intent to commit a sexual offence.”
During that examination we saw that offences such as kidnapping or false imprisonment are examples of offences which are usually committed with the intent of committing a sexual offence.
Now, it is well known that to commit sexual offences, and many other offences for that matter, persons routinely trespass onto or into property, such as a vehicle, a yard, a dwelling, or all three.
Trespass is already an offence under the Summary Jurisdiction (Offences) Act, Cap 8:02, Laws of Guyana (the SJOA). In fact, sections 33-40 set out various offences involving or constituting trespass. These include “unlawfully entering land or another place after being forbidden from doing so” (section 33 (b) of the SJOA), and “trespass to land by night” (see section 35 (1) of the SJOA).
As trespass is already an offence, if a person trespasses onto property to commit a sexual offence, this would constitute “committing an offence with intent to commit a sexual offence,” under section 33 of the SOA.
However, it is clear here that Parliament considered trespass for the purpose of committing a sexual offence especially heinous, and intended that trespass for this reason be treated differently.
The core offence
Section 34 (1) of the SOA therefore states that a person commits the offence of trespass to commit a sexual offence if the person: a) is a trespasser on any premises; b) intends to commit a sexual offence under the SOA and; c) knows that, or is reckless as to whether he or she is a trespasser.
Section 34 (2) (a) defines the term “premises” to include a structure or part of a structure and defines the term “structure” to include a tent, vehicle, or vessel or other temporary or movable structure.” Neither of these definitions are exhaustive of which will constitute “premises”, or a “structure”. They merely lay out examples.
As such, where any person who knowingly or recklessly trespasses onto any premises, including a house, hospital, school, tent, vehicle, or vessel with the intention of committing any sexual offence under the SOA, he or she commits the offence of “trespass with the intent to commit a sexual offence.”
Importantly, the prosecution would only have to prove trespass, and the intention to commit an offence under the SOA. As such, even if a sexual offence did not take place after the trespass, or where the prosecution is unable to prove that a sexual offence took place, if the prosecution is able to prove trespass with intent to commit a sexual offence under the SOA, this would be enough to secure a conviction under section of the SOA.
Where the prosecution can prove that the accused trespassed with an intention to commit a sexual offence under the SOA, the accused will not be charged with trespass under the SJOA. The reason for this is the grotesque nature of this offence, and the sentences prescribed.
Additionally, if the prosecution has evidence of the trespass and the commission of a sexual offence under the SOA, the accused may be charged with both the sexual offence (under the relevant section), as well as with the offence of “trespass with intent to commit a sexual offence.”
There may be a case where the prosecution suspects that an accused may have trespassed to commit a sexual offence. However, in the absence of cogent evidence, it may be difficult to prove an intention to commit a sexual offence. In such circumstances, it is possible that the prosecution would proceed to charge and prosecute the accused for trespass under the SJOA.
Sentence
A person convicted of the offence of “trespass with intent to commit a sexual offence” following a summary trial faces a fine of $1 million and imprisonment for five years, while a person convicted on indictment faces a sentence of imprisonment for ten years.
These are heavy sentences, especially when compared to the general sentences which are provided for a range of trespass offences under the SJOA.
Section 42 of the SJOA states that “everyone convicted of a willful trespass under this Title shall be liable to a fine of not less than $5000, nor more than $10,000. Thus, if the state of the law requires that trespass committed with intent to commit a sexual offence be charged under SJOA, offenders would face these less stern, and arguably negligible sentences.
Provisions such as section 34 continue to demonstrate why Guyana’s SOA is a great example of sexual offences legislation in the Caribbean. The section criminalises conduct which often accompanies sexual offences, and lays down significant sanctions, over and above the sanctions that would have otherwise applied.
This provision demonstrates the complex nature of sexual offences, and the innovation necessary to deter offenders, and protect citizens.
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.
