Breaking Down Sexual Offences Act
Today we will break down section 38 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“SOA”), a provision which abolished the irrebuttable presumption developed decades ago that a boy under 14 years is incapable of sexual competence, and therefore of rape.
Section 38 of the SOA states that “the presumption in criminal law that a male under fourteen years of age is incapable of sexual intercourse is abolished.”
It is important to recall that there are different sources of laws in Guyana. These include: i) legislation passed by the National Assembly, and the ii) common law (decisions of judges which have the status of law). This presumption was created by the English courts, and was followed by the various British colonies, including Guyana by virtue of colonisation.
In 1982, the court in R v Waite [1892] 2 QB 600, at 601 explained that a boy under fourteen is physically incapable of committing rape, and evidence to rebut that presumption would not be allowed into court.
In that case, a boy of 13 years was charged with carnal knowledge (sexual intercourse) of a girl, aged 8. He was eventually convicted, but upon appeal, this was overturned. This presumption is longstanding and has its origins in Roman law, which recognised 14 as the age of puberty in judicial proceedings (see The State v Bernard Guibeb and six others, Case No: CC 41/97 1998/08/19, at 2).
In a report, the Law Reform Commission of Hong Kong on the Common Law Presumption that a Boy Under 14 is Incapable of Sexual Intercourse observed that “the presumption cannot be rebutted even where there is clear evidence that the boy was physically capable of sexual intercourse at the time of the alleged offence and had in fact had unlawful sexual intercourse with a non-consenting victim.”
The result of that rule was that regardless of the circumstances, a boy under 14 years of age could not be convicted of rape, though he can be convicted of aiding and abetting another to commit rape, or of indecent assault (see R v. Angus (1907) 26 NZLR 948 at 949 and Archbold Hong Kong 2009 at 21-17).
Guyana retained this common law legal rule even after we became independent, and later became a republic. However, as society developed, and with it better understanding and appreciation of human biology, the absurdity of this common law rule became increasingly apparent.
Today, it is not questioned that boys can get erections as early as 10 or younger and are indeed capable of sexual penetration. The close in age exceptions in Guyana’s own SOA recognises that boys as young as 12 years may engage in sexual penetration.
Society therefore understood that there was a need for this law to be changed. In addition to Guyana, other Commonwealth Caribbean states such as Trinidad and Tobago and Jamaica have also changed their own laws.
The change in law made under section 38 of the SOA is even more relevant due to the Juvenile Justice Act 2018 (“the JJA”). Section 4 of the JJA states that the law presumes that no child under 14 years is capable of committing an offence”. However, the JJA also provides that if a child is charged, this presumption can be rebutted by an evaluation ordered by a court for a qualified person to determine the cognitive, emotional, psychological and social development of the child (see section 4 (4) of the JJA).
This is done to understand the child’s level of maturity, and to determine if they had an appreciation of what they did, etc.
If the evaluation finds that the child was mature enough in the areas mentioned earlier the child can be charged, treated as a juvenile, and dealt with under the JJA. If the presumption is not rebutted, the charges must be withdrawn, and the child referred to the Director of the Child Care Protection Agency to be dealt with under the Protection of Children Act, Cap 46:06.
As such, if the common law presumption that a child under 14 years was rape was not abolished by section 38 of the SOA, that presumption ran the risk of clashing with section 4 of the JJA, which does allow boys younger than 14 years to be charged with offences if they are found to be mature enough.
If that law was left unchanged, a child under 14 could be charged with any other offence, if found competent, except rape or another appropriate sexual offence.
Today, section 38 of the SOA and section 4 of the JJA have to be applied together to determine whether a boy under 14 years can be charged and with rape or another sexual offence. Yes, there is absolute presumption of sexual competence and the ability to commit a sexual offence, but that does not guarantee that a boy under 14 who commits rape will be charged. His competence must still be determined, and it is quite possible for it to be determined that he is indeed incapable of criminal capacity to commit a sexual offence.
This has actually happened in some jurisdictions such as Hong Kong, which, like Guyana, has also abolished the presumption that a boy under 14 is incapable of sexual competence.
Section 30 of the SOA is therefore yet another example of intentional effort by Guyana’s National Assembly to ensure that its laws keep up with societal changes and developments. It increases the possibility of appropriately penalising young children who commit rape and ensures protection for their victims.
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
