Breaking down the Sexual Offences Act
Today we examine section 40 of the Sexual Offences Act, Chapter 8:03, Laws of Guyana (“the SOA”), which is titled in the marginal note as “Divestment of authority of a child.”
The term “divestment”refers to taking away authority over a child from parents or guardians in certain circumstances.
Section 40 gives Guyana’s courts the power to legally take away authority from a parent or guardian over a child where the parent or guardian caused, encouraged, or favoured any sexual offence committed against the child. It does not matter that the parent or guardian did not participate in the sexual offence against the child.
To paraphrase, section 40 of the SOA says that if a person is on trial for committing a sexual offence against a child, and during the trial, the court believes that the guardian, parent caused, encouraged or favoured the sexual offence, the court may strip that person of their authority over the child, appoint a suitable guardian to care for the child until adulthood, and then place the child in the custody of that new guardian. Importantly, the person on trial does not have to be the parent, guardian, or another person with lawful custody and control of the child. It is enough that the parent or guardian caused or encouraged the sexual offence against the child.
Section 40 of the SOA is extremely important for a variety of reasons. It is not unheard of that parents, guardians, or other persons with lawful care of children cause or encourage them to become victims of sexual offences. But what exactly does the law mean by “cause”, “encourage” or “favour”? These terms could refer to an unlimited number of circumstances.
One example is if a mother knowingly allows a father, stepfather, or some other person to sexually abuse her child or children for some benefit, including financial benefit. A parent or guardian may also encourage a partner or another person to inflict sexual abuse as a warped form of punishment. There have even been cases where a parent or guardian knows that a child in their care is being sexually abused by their partner, but they opt not to confront the abuser or try to stop the abuse out of shame or fear. These circumstances may be seen as causing or encouraging the commission of sexual abuse of a child and can warrant the removal, temporarily or permanently, of the child from the care and custody of the person who allowed these atrocities to occur.
This provision is clearly a tool to protect the best interest of children. Article 38B of the Constitution of the Cooperative Republic of Guyana, Chapter 1:01, Laws of Guyana, states that “the best interest of the child shall be the primary consideration in all judicial proceedings and decisions and in all matters concerning children…”. A similar provision can be found at section 3 (1) of the Custody, Contact, Guardianship, and Maintenance Act of 2011.
Conclusion
In conclusion, section 40 of the SOA is yet another innovation created by Guyana’s National Assembly.
Not only does the SOA mandate serious sentences for those found liable for sexual offences against children, but under section 40, Guyana’s Courts are given the power, and the responsibility to ensure that child victims of sexual violence are removed from unsafe environmental and placed in safer ones.
There is no doubt that this provision increases the protections available to child victims of sexual violence in Guyana.
