Breaking Down the Sexual Offences Act
In last week’s article, I explained that section 45 of the Sexual Offences Act Cap 8:03, Laws of Guyana (SOA), permits a judge or magistrate to exclude members of the public (including the media) from attending proceedings for sexual offences. These include hearings of paper committals, or trials in the High Court and the Magistrates’ Courts.
This week I will break down additional sections under the SOA which regulate the exclusion of the public from these proceedings. These provisions are sections 46, 47, 48, 49, 50, and 51.
Last week I omitted to mention that the power to exclude the media from attending, and reporting on criminal proceedings is an exception to the protection of freedom of expression under the Constitution of the Cooperative Republic of Guyana, Cap 1:01, Laws of Guyana (“the Constitution”).
Article 146 (1) of the Constitution (as relevant) states that a person has the right to freedom of expression, including the freedom to receive information without interference. These words are broad enough to include information through news reports about criminal proceedings concerning sexual offences. This right to receive this information, however, is not absolute, and several exceptions are supplied under Article 146 (2) of the Constitution.
For example, Article 146 (2) (b) states that laws, and actions taken under laws which protect the reputation and private lives of persons in legal proceedings would not violate Article 146 (1), even if they seem to do so.
Sections 45-47 of the SOA clearly aim to protect the reputation and private lives of complainants. Therefore, it is safe to say that these provisions do not violate the right of the public to receive reports on sexual offences proceedings.
Section 46
Section 46 of the SOA states various factors a judge or magistrate must consider when deciding if the public should be excluded from criminal proceedings, or any part of those proceedings.
Section 46 (a) says that a court must consider the nature of the sexual offence, and how disclosing the details of that offence will impact the life of the complainant. The court must also consider the public interest of encouraging the reporting of sexual offences and seek to strike a balance.
The court must therefore consider whether, in each circumstance, the privacy of the complainant outweighs the interest of reporting on sexual offences matters, or whether the scale tips the other way.
So, in factual terms, what would such a balancing act include?
Let’s say that A, B, and C, all adults, took turns in the rape of D, who is 15 years old. Let us also say that the rape included penetration of D’s anus with foreign instruments.
In this situation, a court would have to consider whether the privacy and/or safety of D, a 15-year-old, outweighs the interests of reporting on such an especially heinous sexual offence against a minor.
This is an extreme, and perhaps easy example. However, there are limitless scenarios that could arise, and many of which may not be simple.
Section 46 (b) says that a court must consider the interests of holding criminal proceedings in public, the potential prejudice to the privacy and dignity of the complainant if sexual offences matters are held in public and seek to strike a balance. Based on the words used, it seems that section 46 (a) and (b) invite courts to take similar factors into consideration in determining whether the public should be excluded from criminal proceedings regarding sexual offences.
Section 46 (c) states that the court must consider the right of the complainant and of every individual to personal security and to the full protection and benefit of the law. This provision requires the court to consider whether allowing the public to view sexual offences proceedings, and or the media to report or such proceedings would threaten the personal security of the complainant.
This includes considering whether a public hearing could expose the complainant to threats or, physical, emotional, and psychological attacks in person, by phone call, via social media or any other medium. Importantly, evidence of a direct attack is not necessary. It would be enough to consider whether there would be criticism via social media, and whether such criticism could affect the complainant’s mental state. Again, this is just one example of a scenario to be considered. Possible scenarios are limitless.
Finally, section 46 (d) gives courts the power to consider “any other factor that the judge or magistrate considers relevant.”
Section 47
There are persons a court cannot exclude from criminal proceedings related to a sexual offence.
Section 47 states that the accused, the complainant, support persons, and attorneys-at-law representing either party and interpreters are not to be excluded from these proceedings.
Some of these prohibitions are tied to rights protected under the Constitution.
For example, a person accused of any offence has the right to defend himself/herself in person or through an attorney-at-law. Further, a criminal trial cannot take place in the accused’s absence unless he/she makes it impossible for the trial to continue (see Article 144 (2) (d) of the Constitution proviso to Article 144 (2)).
The complainant must be present as part of his/her right to a fair trial, and to give evidence if he/she decides to. Also, if either the complainant or the accused speaks a foreign language, the presence of an interpreter is crucial to ensuring that they understand.
Sections 48, 49, and 50
The impact of these sections is simple. Section 48 requires any court which orders the public excluded from criminal proceedings involving sexual offences to give reasons why that decision is taken. This requirement ensures transparency and accountability.
Section 49 states that at the first hearing in criminal proceedings for a sexual offence, the judge or magistrate must bring section 45 to the attention of the prosecution and ask the complainant if they would like the public excluded.
Section 50 of the SOA states that the public and or the jury cannot be present while the court considers whether to exclude the public. This will mean that they will have to be excused while the court considers this question.
Section 51
Section 51 states that even if criminal proceedings concerning sexual offences take place in private, the hearing and passing of a sentence must be done in public. This is mandatory.
This mandate for public sentencing despite a private proceeding is rooted in the public’s interest in making sentences public for informational purposes, to serve as deterrence against the commission of similar offences, and for other reasons.
Conclusion
All societies acknowledge the importance of public trials generally, but Guyana, much like other states, has recognised that this general principle is not appropriate in all circumstances, including criminal proceedings concerning sexual offences.
Through sections 45-51 of the SOA, Guyana seeks to balance the constitutional right to information and the public interest in publicising criminal proceedings with the right to complainants to privacy and protection.
This is a reasonable, if not necessary, undertaking which can enhance the experiences of complainants in sexual offences matters.