By Femi Harris-Smith
If proposed amendments to the current Sexual Offences Act are passed by the National Assembly, sex offenders in Guyana could soon be required to register in a national database; and advance notice of their release from prison will be required to be provided to victims and their families.
A Bill was recently tabled in the House proposing a plethora of amendments to the 2010 Sexual Offences Act, and key among them is for a track record to be kept nationally of sex offenders, their conviction and activities, though it would not be accessible to the public.
Noteworthy, is that the proposed amendments will not apply to a person who was a child at the time of the commission of the offence; or a person suffering from a mental disorder which substantially impaired the mental responsibility for their acts or omissions in the commission of the offence.
The Bill, cited as the Sexual Offences (Amendment) Bill 2024, seeks to amend the principal Act by inserting immediately after section 91; a Part IXA which will make provision for a national sex offender database.
Section 91A notes that the amendment applies to a sex offender who – (a) is a citizen or resident of Guyana and who was convicted of an enterable offence by a court within or outside Guyana on or after 25th May, 2010 and who – (i) completed sentence before the commencement of this Part; or (ii) has not completed sentence before the commencement of this Part; or— (b) is a citizen of Guyana or a resident and who is convicted of an enterable offence by a court outside Guyana on or after the commencement of this Part; or (c) is convicted of an enterable offence by a court in Guyana on or after the commencement of this Part.
If the Bill receives the support of the House, it will require the police to “keep a database known as the National Sex Offender Database, in the form approved by the Minister responsible for Home Affairs, and shall discharge all the duties required of him by the Act.
The police will also be required to ensure that information entered in the database is accurate, while also making reasonable security arrangements to protect that information “against unauthorised access, collection, misuse, alteration, disclosure or disposal.”
Where there is a change in any information provided by the offender, section 91M (1) of the proposed amendments requires the offender to report to the police station nearest to their main or secondary address and provide a designated officer with information on the change within 14 calendar days and provide documentary evidence of the change.
Meanwhile, subject to section 91D, “the database shall not be accessible to the public.”
That section proposes that “any person who is an officer of a state or non-state institution working with children shall, upon making a successful application in its prescribed form to the Minister of Home Affairs and Commissioner of Police, be given access to the information on the database.”
Subsection (2) then goes on to add, “any person who is an officer of a state or non-state institution working with mentally or physically disabled persons shall, upon making a successful application in its prescribed form to the Minister of Home Affairs and Commissioner of Police, be given access to the information on the database.”
All applications to the Commissioner of Police and Minister of Home Affairs requesting access to the national sex offender database shall be done in written form and shall indicate the reason for the request.
Section 91E (1) of the proposals seeks to provide that where a person is convicted of an enterable offence, the court shall order the person to report to a police station at the time they are required to report in accordance with section 91M (1), for the purposes of registering as a sex offender.
Before making such a determination under subsection (1), however, subsection (2) requires the court to request a mental assessment report from a psychiatrist and to take into account the findings of the mental assessment report and the nature and gravity of the offence.
To also be considered is whether the sex offender has been charged or convicted of any other enterable offence during the reporting period; the risk of reoffending; the risk of harm to the victim or any other person; whether the victim was a child or a person with a mental disorder; whether the sex offender was in a position of care, authority or supervision of the victim; and any other compelling reasons in the circumstances of the case.
Subsection (4) of section 91E provides that where a court orders a person to register as a sex offender, the court shall state the duration of the reporting period; and the frequency of the reporting.
Notwithstanding the requirements for the sex offender to register as such, section 91F, provides that where a sex offender has appealed conviction, the court shall withhold making a determination on whether the offender shall register or report, pending the completion of the appeal.
Section 91G seeks to make it clear that where a citizen of Guyana or a resident does an act in a country outside Guyana, which, were it done in Guyana, would constitute an enterable offence under the Act, that person shall be required to comply with the provisions of this Part on entry into Guyana.
The Chief Immigration Officer is tasked with the responsibility of informing the Commissioner of Police of the name and secondary address of any sex offender referred to in subsection (1), within 48 hours of the entry of the sex offender into Guyana.
Meanwhile, in accordance with section 91H (1) “Within four months of the discharge of a sex offender from a prison, the Commissioner of Prisons shall notify the Commissioner of Police, in writing, of the date of discharge of the sex offender from the prison.”
Within one month of receiving the information, however, subsection (2) requires that the Commissioner of Police inform the victim and the victim’s family of the impending release of the offender.
A key feature of the proposed amendments is for the police to collect information from the offender two months before being discharge such as name, former names and aliases; date of birth; photograph; the address of the place in Guyana that the sex offender intends to reside permanently or habitually after discharge; and convictions of enterable offences committed by the sex offender.
The sex offender is then to be informed of the duty to report to the police station nearest to the address given, within seven days of discharge from the prison; and a designated officer shall, within three days of collecting the information, forward the information to the designated officer of the police station nearest to the address.
Within seven days of recording the information provided by the sex offender, a designated officer shall — (a) verify the accuracy of the information before it is entered in the database; (b) register the sex offender as a registered sex offender in the database; and (c) notify the registered sex offender, in writing about that registration.
Subsection (5) of section 91J seeks to make it clear that a sex offender who, without reasonable excuse, fails to — (a) report to a police station; or (b) comply with a request made by a designated officer, commits an offence and is liable on summary conviction to a fine of $500,000 and to imprisonment for one year.
Section 91O makes provision for a sex offender who wishes to travel abroad.
The sex offender must, however, notify the police seven days before the intended departure, state the countries of intended stay; any country of transit; the addresses of the places of intended stay; the duration of stay in each country; the duration of stay abroad; the date of intended return; a copy of the travel itinerary; and any other relevant information as may be required by the police.
A registered sex offender who, without reasonable excuse, fails to report to and provide a designated officer with any information in relation to intention to travel outside of Guyana, commits an offence and is liable on summary conviction to a fine of $1million and imprisonment for two years.
Section 91P provides that where a registered sex offender with a mental disorder is required to report to a police station, the sex offender may be accompanied by a representative.
Meanwhile, section 91Q affords a registered sex offender the opportunity of applying to the High Court to have the information contained in the database expunged — (a) on the completion of thereporting period; or (b) on the basis of any compelling reasons.
According to subsection (2), where a registered sex offender makes such an application, the Registrar shall inform the victim or the family of the victim of the application and the victim or his family may make oral or written representations for or against the application to the High Court stating reasons.
Before determining the request by the offender to have the information in the database expunged, The High Court, shall take into account —the findings of a mental assessment report; the nature and gravity of the offence; whether the registered sex offender has been charged or convicted of any other enterable offence during the reporting period; the length of time between the commission of one enterable offence and another enterable offence; the risk of reoffending; the risk of harm to the victim or any other person; whether the conviction has been overturned or the registered sex offender has been pardoned under section 188 (1)(a) of the Constitution; and any other compelling reasons in the circumstances of the case.
