Breaking Down the Sexual Offences Act
Today, I will break down Section 78 of the *Sexual Offences Act, Cap 8:03, Laws of Guyana* (“the SOA”).
This law protects complainants in sexual offence proceedings by limiting the admissibility of evidence about their sexual activity or reputation, given that such evidence could do more to prejudice the complainant’s case, rather than prove or disprove any aspect of the case.
Section 78(1) prohibits a magistrate or high court judge from admitting evidence of a complainant’s sexual history, or any sexual relationship with the accused during the criminal trial. The section also prohibits the magistrate or high court judge from allowing defence counsel for the accused from cross-examining a complainant regarding their sexual activity or reputation in proceedings for a sexual offence.
This means that defence attorneys cannot admit evidence or ask questions about the complainant’s past sexual behaviour or reputation as part of their strategy to discredit the complainant’s testimony. While this is less important in summary trials, where there is no jury, and the magistrate determines whether what is alleged is believable, this law is critical in high court trials, where juries may draw harmful inferences from such evidence or questioning.
Preventing specific harmful inferences
Section 78(2) extends this protection by prohibiting the admission of evidence about a complainant’s sexual activity (whether with the accused or others) to support certain harmful inferences. Specifically, it ensures that evidence of past sexual activity cannot be used to suggest:
increased likelihood of consent (Section 78(2)(a)): The magistrate in a summary trial or the jury in a high court trial cannot infer that because the complainant engaged in sexual activity before, they are more likely to have consented to the alleged offence; and
diminished credibility (Section 78(2)(b)): The complainant’s credibility cannot be questioned on the basis that their past sexual behaviour or reputation makes them less worthy of belief.
Rationale for Section 78
Historically, courts have allowed evidence of complainants’ sexual history to be introduced in sexual offence trials. This has often resulted in prejudicial conclusions. Complainants were frequently discredited or stigmatised based on irrelevant and harmful stereotypes about their sexual behaviour.
Section 78 addresses these issues by ensuring that trials focus on the alleged offence rather than the complainant’s personal history or reputation. This approach reflects the understanding that prior sexual activity is irrelevant to questions of consent or credibility.
How the law works
Imagine a case in which the accused claims the complainant consented to sexual activity. In such a case, the defence might attempt to introduce evidence that the complainant had previously engaged in consensual sexual activity with the accused. Under Section 78(2)(a), such evidence is inadmissible if its purpose is to imply that the complainant was more likely to have consented on the occasion in question.
In another scenario, the defence might argue that the complainant’s reputation as someone who has engaged in multiple sexual relationships, and in a range of different sexual acts makes them less believable. Section 78(2)(b) explicitly bars such arguments, recognising that a complainant’s sexual history has no bearing on their truthfulness.
Section 78 seeks to balance the rights of the accused to a fair trial with the need to protect complainants from prejudice and humiliation. By prohibiting evidence and cross-examination about a complainant’s sexual activity or reputation, the section aims to:
prevent the reinforcement of harmful stereotypes about victims of sexual violence;
ensure that complainants are treated with dignity and respect during court proceedings; and
focus the trial on the facts of the alleged offence rather than the complainant’s character.
Section 78 of the SOA is a powerful tool for safeguarding the rights and dignity of complainants in sexual offence cases. By eliminating prejudicial inferences and keeping trials focused on the relevant facts, this provision helps to ensure fair trials for all parties.
