Dear Editor,
The Ministry of Legal Affairs has published a Draft Sexual Offences (Amendment) Bill (2024) on its website at https://mola.gov.gy/draft-bills, and invited feedback from citizens on the draft. We have reviewed the amendments and given feedback to the Ministry of Legal Affairs. We think it is important to share the feedback with the public to encourage wider discussion on sexual violence in Guyana and to encourage the participation of citizens across Guyana in the prevention of sexual violence. The detailed matrix of our feedback is available on a Google document at https://bit.ly/3xcxHZ3.
On amendment 41A “Power of Director of Public Prosecutions to remit cases summarily,” we have a concern that this amendment gives the DPP sweeping powers to refer matters to be tried summarily in a Magistrate’s Court. Our recommendation is that the types of sexual offences must be clearly identified in 41A, and these should be minor sexual offences. This is important as penalties at magistrate’s court are half of those if treated as an indictable offence before judge and jury in the high court. We welcome amendment 43A as our understanding is that this allows for admissibility of written statements once these have already been admitted into evidence. This allow cases to continue even in absence of claimant/victim or witness to attend court for the following reasons; death, being physically or mentally unfit to attend trial, out of Guyana and unable to return for good reasons, cannot be found or is being kept away from the trial by threat of bodily harm or death.
We also welcome the amendment to section 56 as this allows video recorded statements to be used including those related to sexual offences. This would be particularly useful in cases of young children and no doubt would be welcomed by Child Advocacy Centres (CACs). However, at the same time, we have great concern about the challenges of maintaining security for such video recordings. As such, we recommend at a minimum the following safeguards be put in place: Safe & secure storage systems for such recordings; chain of custody arrangements to ensure confidentiality of recordings; clear identification of those with access to such recordings; clear instructions as to where and who has responsibility for storage etc. It is further recommended, that under this provision, instructions are written into this amendment to reflect security issues identified and that there be stiff penalties for anyone breaking the chain of custody and releasing or sharing such information.
On the other hand, amendment 72A must be removed altogether and the original wording in 72 (1) of the Sexual Offences Act (SOA) 2010 be kept. Arguments for removing this amendment are that it turns back the clock, fails to acknowledge that the ‘recent complaint’ amendment is outdated, debarred, and discredited from the majority of sexual offence laws in the majority of jurisdictions globally. Additionally, it fails to recognize, as clearly stated in SOA 2010, that many survivors/ complainants of sexual offences may not immediately report an SOA offence due to a number of good reasons. To reinsert such a discredited amendment is an assault on the years of activism by women, NGOs and members of Guyanese civil society to have such language removed, as this has been responsible for not only many survivors of rape losing their cases but has been a major impediment to the rights of survivors of sexual abuse to justice.
This amendment also does not consider the physical and psychological trauma that survivors/victims of sexual offence suffer, directly impeding their ability to report sexual offences and the more brutal the sexual offence the more serious the trauma. Additionally, if you live in Indigenous, hinterland, interior or isolated rural areas it might be in effect impossible to reach any place or designated person to report the said sexual offence with the heightened possibility of obstruction of prosecution an offence under the SOA 2010. The section that the 72A amendment seeks to modify is 72(1) which states, “In considering whether a recent complaint was made as soon as could reasonably be expected, the Court shall consider the following factors – (a) the nature of sexual abuse and the stigma or humiliation often thought to go with them, and that they are commonly found difficult to report (particularly child sexual abuse); (b) the relationship of the victim and accused; (c) the particular characteristics of the person in relation to whom the abuse is alleged to have been committed; and (d) all other relevant circumstances. (2) Whether the complaint was made as soon as could reasonably be expected will depend on the facts of the particular case and there is no outer time limit.”
We welcome amendment 86A Breach of Duty to Report as it now has penalties, but the amendment is unclear on who is an officer of a state or non-state institution. Our recommendation is that these officers should be clearly defined, as set out in Protection of the Children’s Act, and even added to as necessary, such as headteachers and teachers, social workers, counsellors, coaches, religious leaders, persons who offer childcare services, health care professionals – doctors, medexes, nurses, lawyers, members of NGO’s, coroners.
We welcome the inclusion of section IXA -National Sex Offenders Database, but recommend that like Trinidad &Tobago’s SOA, Guyana considers having not only a restricted sex offenders data base but also a public sex offender registry which can be accessed through a website. There is not adequate space to go through this in any detail here but it is clear that this new section needs more consultations especially as we are mindful of the challenges the Guyana Police Force have had in data collection and maintenance of data bases. We caution that adequate time and expertise be made available for the creation of the national sex offender data base and a public sex offenders’ registry with clear instructions on accessing such information. We also are concerned that convicted sex offenders can use the appeals process not only to delay sentences but also to delay being added to the sex offenders’ data base as appeals can take many years to be heard. We hope that the public will engage with the Government on the amendments. We will also present our concerns about the implementation of some sections of the current act.
Sincerely,
Red Thread Guyana
Indigenous Delegation against Domestic and
Sexual Violence
Danuta Radzik
Vanda Radzik
Vidyaratha Kissoon
