Breaking Down the Sexual Offences Act
Last week I broke down several sections which permit and regulate the power given to courts to exclude members of the public, including the media, from hearings of sexual offences.
Today, I will break down section 52 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“the SOA”), titled in the marginal note as “Behaviour and reaction of complainant.”
Section 52 of the SOA states (in essence) that if any evidence is provided to a jury concerning how the alleged victim of a sexual offence acted during the commission of the offence, the judge must inform the jury that victims of sexual offences react differently, and that the presence or absence of expected behaviour is not evidence that the alleged sexual offence did not take place.
The reference to a “jury” in this section means that this provision is only relevant to judges in trials in the High Court.
Why is section 52 necessary?
Victims of sexual offences or attempted sexual offences react in various ways during and after the offence is committed against them.
Expected responses and behaviours may include: i) screaming/yelling, ii) resisting/fighting the attacker, and iii) otherwise attempting to escape. It is also normal for the victim of a sexual offence not to show signs of arousal.
Additionally, many victims of sexual offences may go to significant lengths to distance themselves from their attacker and may also report the offence to the police.
It is safe to say that generally, members of the public (including those picked for jury duty for a sexual offence trial) will expect victims of sexual offences to behave in the above stated or related ways, and if their reactions were different, there can be doubts as to whether the offence took place.
Unexpected responses
We now know that is possible for a victim of sexual offence to: i) remain silent during the offence, ii) decide not to resist/fight the attacker, iii) participate in the offence by, for example, taking off clothes and kissing the accused, iii) and allow the attacker to take them home after the attack.
Where the complainant knows the attacker, it is also possible for the complainant to continue to engage the accused. Further, in cases where the complainant and the accused share a romantic relationship, it is also possible for the complainant to have consensual sex with the accused after the non-consensual sexual experience. Victims of sexual offences may even exhibit signs of arousal.
The ordinary members of the public may see such behaviour or responses as conclusive evidence that the complainant likely consented to the sexual activity which they claim to be non-consensual. As such, where evidence of this kind of conduct exists, attorneys-at-law representing persons accused of such offences routinely seek to bring it to the attention of the jury as it can sway the opinion of members of the jury.
However, a person may decide not to resist an attacker verbally or physically, and even participate in his or her assault due to fear, force, or involuntary intoxication. Such an attack may also put a person in a state of shock, rendering them incapable of responding. These reactions should also be expected or seen as normal.
It is also unusual for victims of a sexual offence to feel that they did or said something which caused the accused to attack them. This may cause them not to resist the attack.
In cases where the complainant exhibited signs of arousal, they may feel that these were signs that they enjoyed the attack, which may trigger feelings of guilt.
Both the courts and lawmakers started to realise this and acted.
Now, to be clear, the above-stated unexpected behaviours or can indeed be evidence that the offence did not take place. However, it became important to emphasise that it was not conclusive evidence that the offence did not take place.
It is, therefore, now a trite principle of law that where a victim does not verbally or physically resist his/her attacker, this alone is not evidence of consent. We also know that the biological reactions to sexual stimuli are not definitive signs of consent.
Considering this reality, Guyana’s lawmakers set out to mitigate any negative inferences that could be drawn by a jury in response to such evidence. Section 52 of the SOA is intended to be that mitigating force.
Presence vs impact
The awareness and intention which underpin section 52 of the SOA is admirable. The presence alone, however, of section 52 does not mean that it achieves the purpose intended.
I am not arguing that the section is ineffective. I am aware, however, that Guyanese society remains fiercely conservative on many things, especially sexual activities. Consequently, I would not be surprised if a mere direction by a judge fails to erase whatever adverse views come to the mind of a juror after hearing that (for example) a woman who alleged that she was raped never verbally or physically resisted and exhibited sighs of arousal.
As such, in cases where there is evidence that a complainant exhibited ‘unexpected’ responses or behaviours during or after the alleged sexual offence (which could suggest consent to a jury), I would recommend that the prosecution provides evidence from an expert demonstrating that unexpected responses and behaviours do not necessarily mean the complainant consented.
Admittedly, even this may not be enough. Societal notions, concepts and values are enduring, even in the face of reason or research. Yet, judicial direction coupled with expert evidence would undoubtedly achieve more than judicial direction alone.
