Breaking Down Sexual Offences Act
Last week we started an examination of section 35 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“SOA”).
I explained that generally, a court’s power to try any person for committing a crime under Guyanese law is based on the principle of territoriality. This simply means that a court can prosecute a person because they committed a crime in Guyana, or within Guyana’s territory.
Again, this is the general position, but there are circumstances under which a Guyanese court can try a person for conduct committed in a different country. Section 35 of the SOA seeks to do this.
As such, if any Guyanese citizen of resident engages in conduct in a different country which i) is a sexual offence in that country, or engages in conduct in a different country which would be a sexual offence if committed in Guyana, that person is deemed to have committed a sexual offence (see section 35 (1) SOA).
In those circumstances, the courts of Guyana have jurisdiction and power to try that citizen or resident for the relevant offence.
Today, we continue by examining the remaining provisions of section 35 of the SOA.
The person who engages in conduct overseas which is deemed to be a sexual offence under the law of Guyana is given an opportunity to argue that the conduct he or she engaged in should not constitute an offence.
Section 35 (3) provides that the conduct mentioned in section 35 (1) shall be deemed to be an offence under the SOA unless the person charged serves the prosecution a notice which indicates that the conduct or act which is the subject of his prosecution does not actually constitute an offence, and provides reasons to support this notice.
Importantly, however, this notice is not mandatory, and service of this notice itself does not itself successfully negate or rebut the charge that the person is deemed to have committed a sexual offence. Instead, it is the beginning of the proceedings during which the court will determine whether the person should indeed be deemed to have committed a sexual offence under the SOA.
Even if the accused person does not serve the above-mentioned notice for the court’s consideration, the court may, if it thinks fit, require the prosecution to prove to it that the conduct which has been deemed a sexual offence under the laws of Guyana is indeed an offence under the SOA (see section 35 (4) of the SOA).
This process, of course, will require:
a. an examination of the elements of the offence committed overseas;
b. an examination of the relevant laws of the foreign jurisdiction; and
c. an examination of the relevant local laws to determine whether the conduct committed overseas indeed constitutes an offence under the SOA.
The prosecution will provide facts and law to argue why the conduct is indeed an offence under the SOA, while the accused, whether himself or represented by an attorney-at-law (preferably the latter) will offer evidence in support of his contention that his conduct should not be deemed a sexual offence under the laws of Guyana.
Ultimately, it is the court, after examining all of the evidence and arguments offered by the prosecution, and the accused, which will decide whether the person should indeed be deemed to have committed a sexual offence under the laws of Guyana, the SOA particularly.
This process would have to be completed before the person is tried for the commission of the offence.
It is uncertain whether the prosecution in Guyana has had cause to operationalise this provision. Guyanese citizens or residents who commit sexual offences overseas are indeed likely to be charged and tried in foreign courts as long as the offence is reported.
However, if they flee the jurisdiction in which they committed the offence to Guyana, then the law may be applicable, unless Guyana decides that extradition is a better option.
