Breaking down the Sexual Offences Act
This week, we will be breaking down section 35 of Sexual Offences Act, Cap 8:03, Laws of Guyana (“the SOA”) beginning with offences outside Guyana.
In essence, this provision seeks to make it clear that any citizen or resident of Guyana who commits an offence under the SOA in any other country is also considered to have committed a sexual offence under Guyana’s laws under certain conditions. The effect of this provision is that Guyana’s courts, whether magistrates’ courts or the High Court, can have jurisdiction to try Guyanese citizens or residents who commit sexual offences in overseas jurisdictions.
Such provisions are especially helpful where the perpetrators commit sexual offences overseas and then flee those jurisdictions to hide in Guyana. We break down these conditions, and other relevant provisions below.
Section 35 (1) (a) states that any conduct committed outside of Guyana’s territory will be deemed to be a sexual offence under the SOA if that conduct also constitutes an offence under the laws of the country in which the conduct was committed.
As such, if A (being either a resident or citizen of Guyana) rapes B in the United States of America (the US), and rape is an offence under US law, then A is deemed to have also committed an offence under the SOA.
Thus, if A engages in conduct which amounts to a sexual offence under US law, then flees to Guyana, Guyana’s courts are vested with jurisdiction to try A for the commission of that offence if the conduct committed in the US also amounts to a sexual offence under the SOA.
Of course, the court of the foreign country also has jurisdiction to try any person who commits a sexual offence under that country’s laws. Such a case where two countries have jurisdiction over an offence stemming from the same set of facts is referred to as simultaneous or dual jurisdiction.
In those cases, if the Guyanese national or resident is tried by a foreign court for the sexual offence committed in that jurisdiction, the citizen or national will not be tried again by or in Guyana, as they would have already been tried for the commission of that offence.
If Guyana’s courts, under section 35 (1) (a) of the SOA tried a person who was already tried by a foreign jurisdiction, this would be unfair, and indeed unlawful, as a person should not be tried and sentenced twice for the same offence.
Meanwhile, section 35 (1) (b) states that any conduct committed outside of Guyana’s territory will be deemed to be a sexual offence under the SOA if that conduct would constitute a sexual offence under the SOA had it been committed in Guyana.
The implication of this provision is that if A (being either a resident or citizen of Guyana) rapes B in Canada, Trinidad and Tobago, or even the Netherlands, A has committed rape under the SOA so along as the conduct stipulated under the SOA are proven.
Under this specific provision, even if A engages in conduct which is not criminalised in a different country, he/she can still be prosecuted in Guyana if that conduct amounts to a sexual offence under the SOA.
Guyana would likely have to wait until the person re-enters its jurisdiction to prosecute that person, however. Usually, if Country A wants to prosecute a person, including its own national, who is in Country B, Country A can request that Country B extradite that person. Extradition simply refers to the act by one country of detaining a person and sending him or her to another state (the requesting state) for the purpose of being prosecuted.
Importantly, one of the requirements for one state to agree to extradite a person, is that the person of concern must have committed conduct which is an offence in the state making the request. If this is not the case, extradition will usually not take place.
There can, therefore, be no extradition under the circumstances set out in section 35 (1) (b).
Conclusion
Section 35 of the SOA is without a doubt an innovation regarding sexual offences in Guyana. It ensures that Guyanese residents and citizens are never beyond the reach of Guyana’s courts regardless of where they commit their offences.
This provision demonstrates the National Assembly’s commitment to address such conduct.
