Breaking down the Sexual Offences Act
As we continue to break down the Sexual Offences Act, Cap 8:03, Laws of Guyana (“the Act”), today we will examine section 41, an incredibly important, if not innovative provision.
Section 41 of the Act is titled “Mandatory record and investigation”, and sets out provisions regarding the reporting of sexual offences, and next steps.
Recording and investigating reports of sexual offences are mandatory
Section 41 (1) of the Act states that if any offence under the Act is reported to the Guyana Police Force (“GPF”), the police shall record the report and conduct an investigation.
As the provision states, if such a report is made, the police are required to make the necessary entries into their records (station diary etc), and to actively investigate the report. This provision is intended to ensure that every report of a sexual offence is taken seriously, and was likely created in response to previous claims that reports of sexual offences were not taken seriously.
Deadline for charging the accused, or sending the file to the DPP
Section 41 (2) of the Act requires that three months after a person reports a sexual offence, the accused must be charged, or if the person is not charged, the file relating to the investigation must be sent to the Chambers of the Director of Public Prosecutions of Guyana (DPP) for advice to be given on how to proceed.
Liability for delay in charging or transmitting file to DPP
Section 42 (3) of the Act states that if the relevant investigating officer fails to comply with the duty to charge the accused, or transmit the file to the DPP within three months of receiving the report, the investigating rank is liable to answer disciplinary charges under the Police (Discipline) Act, Cap 17:01, Laws of Guyana. Penalties can include reduction in rank, a fine, suspension, or even dismissal from the GPF.
Again, this innovation of setting a deadline, and then imposing a penalty for failing to abide by that deadline is intended to address or eliminate the delay in investigating and prosecuting sexual offences. And, it is likely that they have worked. Since these rules passed, both reporting and prosecutions of sexual offences have increased, and even convictions have increased. That said, since no research has been conducted on the topic, it is not possible to say with absolute certainty that these improvements are attributable to these legislative innovations.
Liability of false reports of sexual offences
Another important innovation is the criminalisation of false reports of sexual offences. Section 41 (4) of the Act states that a person who makes a false complaint to the police may be charged with the offence of making a false complaint, and if found guilty, could be made to pay a fine of $50,000 and serve three years in prison. This provision was created due to the fact that false reports can/have been made, and such reports can have devastating consequences on a person’s life. While false reports are not frequent, they are not non-existent.
Now, to be clear, the fact that a person who was charged with a criminal offence was not convicted does not mean that the report was false. Additionally, the fact that a report was made, but police failed to find evidence of the offence does mean that the report was false.
Sexual offences, especially offences such as rape, can be complex, and even hard to prove. For example, consider that a man and his wife are having sexual intercourse, which both of them initially consented to. Also consider that after ten minutes, the woman changes her mind and asks her husband to stop, but he refuses. In such a case, the wife was withdrawn her consent, and the sexual intercourse which happens after she asked him to stop is rape.
However, if she then reports this to the police, and the police investigate, and then charge him, there is likely to be no evidence but the individual positions of the man and his wife. As such, it would be difficult to find evidence of this offence, much less secure a conviction. Thus, though it would be unfortunate not to secure a conviction in such a case, from my perspective, it would also be understandable.
This is different from making a false claim, however. There have been critics who have said that this provision might dissuade people from reporting sexual offences if they think there is little evidence that it happens. However, I suspect that most Guyanese do not even know this provision exists, so I doubt it impacts the decision to report or not. In any case, as stated before, reports of sexual offences have increased since the introduction of the Act.
For the same reason, I doubt that the provision is as much of a deterrent to false reporting as it was intended to be. That said, I can only recall one case in recent years where a person has been charged and convicted for making a false report, although the charge does not seem to have been under section 41 (4) of the Act.
Conclusion
Section 41 constitutes an important, and innovative provision. The section seeks to ensure that all reports are taken seriously, and are investigated. The provision also seeks to eradicate delay by imposing a deadline, and penalties for failing to abide by the deadline. Finally, the section seeks to deter false reports by criminalising such conduct. We can reasonably assume that these provisions have had at least some positive impact on the rates or reports and prosecutions of sexual offences.
