Breaking Down the Sexual Offences Act
This week I will be breaking down section 42 of the Sexual Offences Act, Cap 8:01, Laws of Guyana (“the SOA”).
Section 42 of the SOA is titled “Confrontation” in the marginal note.
The abolition of confrontations
Section 42 (1) of the SOA states that if a person (“the complainant”) reports to the police that another person (“the accused”) has committed any of the offences under the SOA against them, the police should not make the complainant repeat the details of the report in the presence of the accused during any part of the investigation (or the trial I would add).
The only exception is where the complainant wants to do so. Moreover, the complainant should not be coerced or otherwise convinced to agree to a confrontation.
Further, section 41 (2) of the SOA states that a complainant must not be required to view or be in the presence of the accused and or accomplices unless for identification purposes, and even then, identification can only be by audio-video link, two-way mirror, or another appropriate manner which considers the complainant’s well-being.
What is a confrontation in the context of a police investigation?
Usually, when a person is accused of committing an offence against another, police officers have the option of holding a “confrontation”. During a confrontation, both the complainant and the accused stand, in the presence of each other, before police investigators and tell their versions of the facts.
The facts disclosed during a confrontation are not used to determine guilt, although they are used to determine whether the accused should be charged, and as part of the evidence which is eventually admitted into court to allow a magistrate or judge to determine guilt or innocence.
Importantly, the accused is never required to say anything. He or she has a right to remain silent, and a right to have his/her attorney-at-law present during the confrontation, and any other engagement he or she has with the police for that matter. This can be a useful tool for crime solving.
The question which therefore arises is: why abolish confrontations in cases of sexual offences? The answer is simple.
Rationale for the abolition of confrontations in sexual offences matters
Sexual offences can have deep and lasting emotional, psychological, and even psychopathic impacts on victims. These impacts include lifetime depression, anxiety, stress, antisocial personality disorder or a combination of these.
It is also well documented that victims of sexual offences may feel threatened or intimidated in the mere presence of their abuser. These factors can combine to cause the complainant to struggle to properly recount what took place and may even cause them to recant the accusation. It is also possible for a stressful investigation or trial to cause a complainant to recant their story and decide that they no longer want to give evidence against the accused.
Since much of the evidence in sexual offences matters are the accounts of the complainant and accused, an investigation can die if there is no evidence beyond the account of the complainant, and the complainant recants.
The abolition of confrontations in cases of sexual offences therefore serves to protect the integrity of the criminal investigation, and the well-being of the complainant by making the complainant as comfortable as possible (all things considered).
Importantly, this measure is not an indication that the accused is presumed by the law and police investigators to be guilty. Instead, it is an indication that the accusation is taken seriously.
Related provisions
There are other provisions under the SOA which consider the complainant and try to protect the integrity of the investigation, and criminal trial, if one arises.
These provisions include sections 55, 56, 57, and 58 of the SOA. Sections 55 and 56 allow the complainant to, during a trial, give evidence from the cover of a screen (section 55), or audio-visual link (section 56). This way, the accused cannot look at or otherwise see the complainant (and vice versa) when he or she is giving testimony.
Guyana has set up sexual offences courts in Georgetown, Essequibo and Berbice to give effect to these provisions. In these courts, complainants give evidence from a different room which is connected to the main courtroom by audio-video link.
Meanwhile, section 57 allows judges to order lawyers to remove their gowns during trials, and section 58 allows a child complainant to be examined or cross-examined through an intermediary (as opposed to an attorney). These measures are aimed at reducing the intimidation factor usually associated with criminal trials. I will break down these related provisions in more detail in subsequent articles.
Implications of breaching section 41
Section 41 of the Act does not create a penalty for cases in which police officers breach this section and put the complainant in the presence of the accused. Nevertheless, if the police fail to comply with section 41, there can be various repercussions.
A complainant can report the offending officer(s) to the Office of Professional Responsibility which can recommend that a rank (or ranks) be disciplined.
The Guyana Police Force (GPF) can also be sued for breach of statutory duty or negligence if they fail to comply with section 41, and that failure causes emotional or other harm to the complainant.
Conclusion
In conclusion, section 41 allows the GPF to break from traditional police practice, considering social change and social learning. Now that we better understand that some investigation tactics are not appropriate for sexual offences offences, we have passed laws which cater to the nuances of sexual offences matters.
Undoubtedly, this provision increases the chances of successful investigations and prosecutions.
