Breaking Down the Sexual Offences Act
Today I will examine an important and common issue which affects sexual offence trials in the High Court. This issue is the failure, or delay by a complainant in reporting a sexual offence.
Section 71 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“SOA”) is titled “Warning to jury” in the marginal note, and it includes guidance to judges in cases where an alleged victim of a sexual offence/ complainant delayed reporting the sexual offence, or did not make a report at all.
Delay and non-reporting of sexual abuse
Today, it is common knowledge that victims of sexual offences often delay telling anyone about the offence, or even reporting the offence. Such delays can be hours, days, weeks, months, or years.
In 2019, Jean Carrol accused former United States president Donald Trump of sexual abuse which she said took place in 1996 (28 years ago). According to the Associated Press, she won a multi-million dollar defamation suit against the former president in 2023 for refusing the allegation and disparaging her reputation. In the same article, Jessica Leeds, a former stock broker, testified about the former president of groping her in the 1970s, while Natasha Stoynoff, a writer, said the former president forcibly kissed her in 2005.
Additionally, in 2023, Joan Tarshis accused Bill Cosby of sexual abuse in 1969 or 1970. Many other have accused him of drugging and raping them decades ago.
Victims of sexual abuse may delay reporting this abuse for various reasons, including: i) feelings of guilt or shame; ii) fear of not being believed, or of retaliation by the abuser (especially where the abuser is powerful, wealthy, or both), or friends and family of the abuser; iii) ignorance of the fact that what happened to them was a criminal offence; and iv) avoidance, where the victim just wishes to avoid facing what happened by ‘moving on’.
For these same reasons, many victims of sexual abuse may never report this abuse. Thus, it is common for criminal investigations and prosecutions to only commence after reports are made by family or friends of the victim.
Impacts of delayed and non-reporting on social perception
Though it is now common knowledge that victims of sexual abuse routinely delay reporting or sexual abuse, or may never report that abuse, many people in society often view that delay or non-reporting with suspicion, and to the detriment of the complainant. It is normal today to see or hear ordinary members of the public doubting the authenticity of an accusation of sexual abuse solely on the basis of delay by the complainant in making the report. ‘Why he/she wait so long to report it if he/she get rape’ is a common refrain.
It therefore should not be a surprise that members of juries can also harbour such views.
This factual reality underscores the importance of section 71 of the SOA.
The Core of Section 71 of the SOA
Section 71 of the SOA states that during a trial in which a person is accused of a sexual offence, if there is evidence that suggests that there was delay by the victim of the offence in reporting the offence, or that there was no report at all, the judge must: warn the jury that the delay or absence in reporting the offence does not necessarily mean that the allegation is false.
The judge must also inform the jury that there may be a good reason (such as one of the reasons stated above) why a victim of sexual abuse may delay reporting the abuse or not report the abuse at all.
This is a mandatory warning, and it is intended to combat the negative inferences jurors may be inclined to draw from delayed complaints, or the absence of complaints altogether.
The effectiveness of the mandatory warning
While the mandatory warning is helpful, it is difficult to test its effectiveness. One could ask jurors whether such a warning influenced their thinking, or ask the judges or lawyers involved their opinions of the effectiveness of the mandatory warning, but this is unlikely to happen in Guyana any time soon, or ever.
