Breaking Down Sexual Offences
This week we will break down a somewhat technical legal rule of evidence in criminal proceedings.
Section 70 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“the SOA”) is titled “Compellability”.
What is compellability?
The concept of “compellability” is a rule in the law of civil and criminal evidence, and it governs who can be forced by law to give evidence in a civil or criminal trial. A compellable witness is a person who is competent to give evidence, and can be required by the court to attend a trial for the purpose of giving evidence. Under law, if a court compels a person to attend court to give evidence, and they refuse, they can be held in contempt of court, and penalised accordingly.
Section 70 states that the spouse of a person charged with any offence under the SOA may be called by the prosecution or defence to give evidence without the consent of the person charged. To the uninitiated, this may seem like a common-sense rule. Nothing special about it. Right? Except that this is a special rule. The general rule of evidence in criminal trials is that one spouse cannot be compelled to give evidence against the other spouse.
Sir Edward Coke, speaking at the beginning of the 17th century, expressed the view in the following way: “Note it hath been resolved, that a wife cannot be produced either for or against her husband… and it might be a cause of implacable discord and dissension between them, and a means of great inconvenience.” Clearly, the rule was born of the view that there is free flow in information between spouses, and if one was to give evidence against the other, it would be detrimental to the family unit. This view was adopted by courts and exposed for years as common law (judge-made law), so that neither a wife or a husband could be called to give evidence against the other in any criminal or civil trial, even in cases where either spouse was accused of assault or battery against the other.
Slowly, however, society realised the absurdity of the blanket applicability of this rule, and started to create exceptions in legislation.
As such, in Guyana, section 51 (1) of the Evidence Act, Cap 5:03, Laws of Guyana now provides that if a spouse is charged with any bodily injury inflicted against the other, the other spouse can be compelled by a court in a criminal trial to give evidence against the charged spouse of the events surrounding that injury. This means that in domestic violence cases, for example, the battered spouse can be compelled to give evidence against the abusive spouse, even if they do not want to do so (though in practice, prosecutors seldom seem to proceed with such cases where the abused spouse refuses to give evidence).
The rule under section 70 is another important exception to the general rule of compellability of spouses.
As stated earlier, where a spouse is charged with any offence under the SOA, the other spouse may be called by the court to give evidence against the charged spouse. The impact of the rule is clear.
Where A and B are married, and A is charged with the rape of C, B can be compelled by the court to give evidence against A, if B has knowledge relevant to the alleged offence. The rationale for this exception is that the public interest in justice in sexual offence cases outweighs the “implacable discord”, “dissension” and “great inconvenience” that can result from one spouse giving evidence against the other.
Importantly, while it is clear that this exception applies to married spouses, it is less clear whether it applies to common-law spouses, and there have been inconsistent decisions by courts on the matter.
In any case, the effect of section 70 is clear, and important, particularly in a case where the spouse is accused of a sexual offence against their own child, and the other spouse may be aware of these facts. In fact, it is highly likely that these realities were at the forefront of the minds of lawmakers when this provision was drafted. Indeed, it is no secret that when one parent sexually abuses their children, it is common for this to be hidden by the other spouse due to shame or the normalisation of such acts. Section 70 therefore works to ensure that familial relationships do not act as a bar to criminal justice in sexual offences matters.
