Breaking Down the Sexual Offences Act
Sections 62 and 63 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“SOA”), empower Guyana’s courts to ensure that complainants in sexual offences cases remain anonymous both in the courtrooms, and in any media reports covering those cases.
In a previous article, I spoke about section 45 of the SOA, which empowers Guyana’s courts to exclude the public and media from hearings of all sexual offences cases. In that article, I mentioned that one of the objectives of that law is to protect the identities of these persons.
I also mentioned that section 10 of the Childcare and Protection Agency Act, Cap 46:07, Laws of Guyana (“the CPAA”) contains similar laws intended to exclude the public from sexual offence hearings involving minors, and to prevent media reports from including any information that can allow minors to be identified.
There is therefore some synergy between sections 45, 62, and 63 of the SOA, and section 10 of the CPAA.
Section 62
Section 62 of the SOA is titled “Anonymity for complainant in press reporting” in the marginal note.
Section 62 (1) states that the publication, broadcasting, or transmission, in any way of any information that could identify a complainant in a sexual offences case is prohibited. This is an incredibly powerful law. It is highly likely that due to this law, news reports concerning sexual offences, such as this one, will only carry the age or sex of the complainant. There have been cases, however, where this law has not been observed.
Though the law mentions “press reporting”, it does only apply to media operations. it applies to anyone who improperly makes the details of the complainant public. What if the publication of the details of the complainant is not made by a news outlet? What if a person familiar with the case publishes details of the complainant on Facebook or some other social media platform through a typed post, a recorded video, or a live video?
What if a police officer shares the details or documents to someone who has nothing to do with the investigation or prosecution? What if a nurse in the hospital where the complainant was treated after the assault posts documents or talks about details of the treatment on social media? All of the above-mentioned conduct, in my view, can be considered publications, broadcasts, and/or transmissions for the purposes of this Act, and the person responsible for the post, publication or transmission can be charged and tried for the offence.
Importantly, the examples given above are not the only cases in which non-media persons or news outlets can offend section 62. These are just a few.
According to section 62 (3), if any person breaches section 62 (1), he or she commits a summary offence and faces a fine of $2 million if convicted. If the news report is carried by a media establishment, then the media establishment, as opposed to any individual reporter or editor, is likely to be charged with the offence.
If, in any of these cases, the complainant gave written consent to having their information made public, no offence is committed. However, if the complainant gave consent due to fear, force, or fraud, then the consent is not valid, and there can still be a charge.
There are circumstances in which including those details in a document and sharing that document may not be an offence. These circumstances include any transmission of these details for investigative or prosecution purposes, or in the provision of medical or psychological services.
Section 63
Section 63 of the SOA is titled “Anonymity for the complainant in Court” in the marginal note.
This law states that when a complainant in a sexual offences matter is called to give evidence, the court must advise him or her that he or she should not state his or her name and address.
This law is simple but significant as it simultaneously safeguards the identity of the complainant and makes him or her feel more comfortable recounting the details of the alleged sexual offence committed against him or her.
Together, these provisions ensure that complainants in sexual offences cases can provide evidence of the alleged offence against them without having to worry that their identities and their stories will be broadcast to the four corners of Guyana. Such a reality is bad enough, but this is compounded by the fact that Guyana is incredibly small.