Breaking Down the Sexual Offences Act
Today, we will discuss the Second Schedule of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“SOA” or “the Act”).
The Second Schedule of the SOA provides the procedures which regulate the powers given to courts under sections 77-79 to decide whether evidence about a complainant’s sexual activities, including sexual history, can be used in cases involving sexual offences.
Notably, the Second Schedule contains two Parts, each setting out different procedures depending on whether the complainant is under 16 or over 16.
The process commences with an application made by the prosecution or the accused to the court for a voir dire (an examination or investigation), a court process used to determine various questions. In this case, the voir dire will be used to determine whether evidence of sexual activity, including prior sexual activity, can be considered by the court to determine guilt or innocence in relation to the sexual activity, which is the subject of the criminal proceedings before the court.
The exclusion of the public, media, and jury is aimed at:
Avoiding prejudice to either the accused or the complainant by preventing the jury from hearing evidence which may be irrelevant, prejudicial, and ultimately not inadmissible.
Ensuring fairness and privacy for the accused and the complainant.
What does the court look at?
According to rule 1 (a) – (g) of Part I of the Second Schedule, before allowing evidence of a complainant’s sexual history, the court considers several factors, including:
Fairness to the accused – The accused must be able to defend themselves fully.
Encouraging reporting – The process shouldn’t discourage victims from coming forward.
Helping the court decide fairly – The evidence must help the court understand the facts better.
Avoiding prejudice – The evidence shouldn’t influence the jury’s emotions unfairly.
Protecting privacy – The complainant’s dignity and personal life should be respected.
Ensuring safety – Everyone has a right to feel safe and protected by the law.
Other relevant factors – The court can consider anything important.
Rule 1 (a) of Part II of the Second Schedule dictates that when the complainant is under 16, two additional considerations come into play. These are:
Preventing child abuse – Society has a strong interest in stopping child sexual abuse; and
Protecting children in court – The court must shield child witnesses from harmful or traumatic questioning.
How does the process work?
Step 1: Making the request for a voir dire (investigation/examination)
Where a complainant is over 16, the prosecutor or the accused who wants to use evidence of prior sexual activity must submit a written request to the court explaining:
The evidence they want to present; and
Why does that evidence matter to the case (e.g., to disprove something already said in court or explain physical evidence like injuries or pregnancy)?
However, where the complainant is under 16 years, the request must also include:
Proof of a third party’s conviction for a crime involving the complainant;
How does the evidence show that the complainant’s sexual knowledge didn’t come from the accused or that the complainant had a reason to lie; and/or
Details about similarities between the evidence and the facts of the case, showing why it’s relevant.
An accused may want to raise evidence that the complainant engaged in sexual activity with a third party to argue that the third party was likely the person who engaged in sexual activity with the minor. However, this evidence is harmful to both the third party and the complainant while offering no help in determining whether the offence the accused is charged with was committed.
This evidence is especially problematic to the third party as it alleges the commission of a criminal offence. This provision thus creates a high bar for the use of such evidence.
Step 2: Additional requirements for questions
If the request by the accused involves a request to cross-examine the complainant, it must outline:
The first questions to be asked; and
How those questions could lead to further questioning.
This rule is essential for several reasons. Article 144 of the Constitution of the Cooperative Republic of Guyana, Cap 1:01, Laws of Guyana, gives everyone a constitutional right to cross-examine everyone who accuses them of a criminal offence. The effect of this rule in the Second Schedule is that the court has the power to decide whether an accused will exercise this right.
When can the request be approved?
The court will only allow the request if:
1. The procedure set out in the Second Schedule has been followed.
2. Relevant parties (like the prosecutor or the accused) have been notified, and
3. The evidence is vital to understanding the case and follows the law.
If any of these conditions are not met and evidence is admitted, the decision to admit the evidence or even the finding of guilt or innocence which follows can be later challenged by appeal or judicial review.
For complainants under 16, the court must also confirm that the evidence meets stricter rules to protect children from unnecessary or traumatic questioning.
Protecting the jury process
In the High Court, if the judge allows the evidence, the judge must explain to the jury how they can use it. This helps the jury focus only on what matters and avoid making unfair assumptions.
What could the application of this process look like?
Let’s assume that A, an adult, is charged with the rape of B, another adult. A and B spoke briefly and only went out once; the same night B says the rape occurred. However, counsel for A has evidence that B has a long history of sexual promiscuity with other men and wants the jury to hear that evidence. The lawyer for A must apply to have this evidence admitted and say why this evidence matters. The court will then consider (1) whether this evidence is fair or prejudicial to the accused or complainant, (2) the privacy of the complainant and (3) whether the evidence helps the court decide on guilt in the current case. If counsel for A wants to have this evidence only because he hopes B’s past promiscuity will harm her credibility, this evidence will likely be excluded.
On the other hand, consider that A accuses B of rape, and the prosecution wants to admit evidence that another person had accused B of rape in the past. This same process applies.
The prosecution will have to show why this evidence is relevant to the current offence, and the court will consider whether that evidence would be more unfair to the accused than helpful to the complainant.
In both scenarios, the public, media, and jury will likely be excluded as the court considers the applications.
Conclusion
The rules in the Second Schedule of the SOA show how Guyana’s legal system works to ensure fairness and respect in sexual offence trials. By setting clear procedures for handling evidence about a complainant’s sexual history—especially for children—the law protects victims while safeguarding the rights of the accused.
