Awareness of the new Sexual Offences Act is an imperative – State Counsel

Apr 29, 2012 News

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Although it has served to redefine rape, the new Sexual Offences Act, which became a reality a few

years ago, even to date, remains flawed. This observation has been made by State Counsel attached to the Chambers of the Director of Public Prosecutions (DPP), Konyo Sandiford.
However, despite the evident flaws, Sandiford said that the Act does not only cater to both the male and female genders, but it is one that does not require a whole plethora of requirements to bring matters before the court.  Nonetheless, she pointed out that since it is laden with defects “by the time you get to raise these flaws in court you could have gone through our penal system, which is in fact not a very nice one…”
In light of this, Sandiford is of the view that not only those within the legal system, but members of the public as well, should seek to acquaint themselves with the Act.
“You must learn about the new Sexual Offences Act because your son, for instance, could get into trouble just by being around somebody who cries rape. So you should go the internet and read it,” the State Counsel advised.
Referred to as the Sexual Offences Act 2010, the legislation could see a young man being charged just for being in the company of a young woman under the age of 16 who later makes an allegation of rape.
“Because rape has been redefined…. as any sort of touching which can be characterised as sexual touching, could see action being taken,” Sandiford pointed out.
Where the complainant in proceedings for an offence under this Act is under 16 years of age, no evidence shall be adduced that the complainant has engaged in any sexual activity, with the accused or with any other person, other than the sexual activity that forms the subject matter of the charge. This is unless the Court determines in accordance with the procedure set out, that the evidence is of criminal sexual activity involving the complainant, and there is evidence of a conviction of a third party for this criminal sexual activity; is to be used to show that inappropriate sexual knowledge was not learnt from the accused, or that the complainant had a motive to lie; and is of facts sufficiently similar to the facts in issue to have significant relevance.
According to Sandiford, the law allows for even a mere allegation made by the young lady to compel the police to investigate and “once the matter is investigated and the file is sent to the Chambers of the Director of Public Prosecutions, there is almost always an obligation to charge.”
This move, according to the Act, is to allow the court, among other reasons, to take into account the interest of society in preventing child sexual abuse and the overriding duty of the court to protect child witnesses from inappropriate and traumatic questioning.
Further still, the Act has outlined that “Where a health worker treats a child and finds evidence that the child has been sexually abused, notwithstanding any law relating to medical confidentiality, the health worker shall report the suspected abuse to the police and keep a record of having done so.”
Moreover, in the case where a complainant is over the age of 16, among the factors that the court must consider in determining whether evidence is admissible under Section 79 of the Act, the court shall take into account: the interests of justice, including the right of the accused to make a full answer and defence; society’s interest in encouraging the reporting of sexual assault offences; whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; the need to remove from the fact-finding process any discriminatory belief or bias; the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; the potential prejudice to the complainant’s personal dignity and right of privacy;  the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and any other factor that the Court considers relevant.
However, Sandiford noted that all matters that came before May 24, 2007, are still among those that efforts must be made to prove sexual penetration.
“For these cases, if a girl is too young to know what is the penis or the vagina, we have the task of trying to prove all of that occurred, but with the new Act, it has been made easier to deal with cases like these…”
This, as a result, has proven to be one of the main flaws of the new Sexual Offences Act since, according to some individuals, a friendly gesture could be misconstrued as rape as outlined by the Sexual Offences Act.
Based on the Act, though, where an accused is convicted of the offence, in addition to passing sentence, the Court may order that the accused pay civil compensation to the complainant. In addition, orders for drug treatment, drug testing rehabilitation and protection and safety orders could be made.
Furthermore, where the offence for which the accused had been convicted suggests risk of HIV transmission to the complainant, a HIV testing order and disclosure of the results to the Court and complainant may be required. An order for mental and psychological treatment could also come into play as well, according to the Act.

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