Breaking Down the Sexual Offences Act
Today, I will discuss Section 79 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“the SOA”), which governs the admissibility of evidence regarding a complainant’s prior sexual activity in criminal matters under the SOA.
What section 79 says about sexual history evidence
Section 79(1) makes it clear that, in cases where the complainant is 16 years of age or older, no evidence of the complainant’s prior sexual activity (whether with the accused or any other person) can be introduced unless the court determines that the evidence meets specific criteria. Only evidence of the sexual activity which is the subject of the criminal proceedings may generally be admitted.
The section therefore applies a general prohibition against the admissibility of such evidence, while providing the exceptional circumstances under which the evidence may be admitted.
Importantly, admissible sexual history evidence can only be allowed if the process in the Second Schedule of the SOA is followed. If this process is not followed, such evidence is unlawfully admitted, and any convictions or acquittals which follow this flawed process are vulnerable to being overturned on appeal or judicial review.
This ‘SAccording to Section 79(1)(a), the evidence which a defence counsel seeks to admit in favour of an accused must pertain to specific, verifiable instances of sexual activity, rather than general or speculative claims.
Rebutting denials for previous sexual activity
Section 79(1)(b) sets out three circumstances in which the evidence may be admissible. Section 79(1)(b)(i) permits evidence which tends to challenge evidence previously introduced by another party in the proceedings. For example, if the prosecution presents evidence suggesting the absence of prior sexual activity between the accused and the complainant, this provision allows the accused to provide evidence of prior sexual activity to counter that claim.
Rebutting claims by an accused of no prior sexual activity.
The SOA allows the prosecution to adduce evidence to prove sexual penetration where the accused denies that there was such penetration. Section 79(1)(b) (ii) of the SOA states that where the accused denies sexual penetration, the court may admit evidence if it tends to explain the presence of semen, the source of pregnancy or disease, or any injuries to the complainant, provided it is relevant to a fact in issue. This ensures that the court can consider evidence that is directly connected to forensic or medical findings.
Further, under section 79(1)(b)(iii) the court may admit evidence of consensual sexual activity between the complainant and the accused that occurred reasonably on or around the date of the alleged offence. This could be critical where the accused asserts that the encounter was consensual and not criminal in nature.
Section 79(2) emphasises that any evidence introduced under section 79 (1) must have some value in proving the case of the accused or the complainant. Importantly, even if the evidence is relevant in this way, if it is of a more inflammatory or prejudicial nature, it should not be admitted.
Why section 79 protects complainants
Section 79 serves as a vital safeguard against the inappropriate use of a complainant’s sexual history during trials. Historically, courts allowed such evidence even when it bore little relevance to the facts of the case, leading to victim-blaming and undue prejudice.
By requiring adherence to the conditions in Section 79(1) and (2), the SOA ensures that the focus of the trial remains on the alleged offence. The complainant’s sexual history is only considered when it is genuinely relevant and necessary to establish the facts of the case.
Balancing fairness and justice
Section 79 reflects the legislature’s effort to balance two key principles: the accused’s right to a fair trial and the complainant’s right to privacy and dignity. Section 79(2) requires the court to weigh the probative value of the evidence against its potential to prejudice the administration of justice or infringe on the complainant’s rights.
By imposing these strict conditions, Section 79 minimises the risk of re-traumatising complainants or allowing irrelevant and prejudicial evidence to distract from the trial’s central issues.
