Non-consensual penetration by an object is still rape-Sexual Offences Act

Dec 14, 2019 News

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The legal definition of rape has changed over the years; it does not only consist of the non-consensual penetration of the vagina by a penis.

A recent incident in which a mother and daughter allegedly inserted a mop-stick into the anus of a man who is said to have raped their 15-year-old relative has sparked much controversy, especially on social media, as to what constitutes rape under the laws of Guyana.
Under the Sexual Offences Act of 2010, a person (the accused) commits the offence of rape if the accused engages in sexual penetration with another person (the complainant), or causes the complainant to engage in sexual penetration with a third person, whereby the complainant does not consent to the penetration or the accused does not reasonably believe that the complainant consents.
Penetration, according to the legislation, means, any intrusion however slight and for however short a time, of any part of a person’s body or of any object into the vagina or anus of another person and any contact, however slight and for however short a time, between the mouth of one person and the genitals or anus of another, including but not limited to sexual intercourse, cunnilingus (oral sex on a woman), fellatio(oral sex on a man), anal intercourse and female to female genital contact…”
Prior to the 2010 amendments to the Sexual Offence Act, rape meant unlawfully placing a penis into a vagina. In this case, it meant that the offence of rape could have only been committed by a man on a woman. However, under the current law governing sexual offences, rape is committed if there is sexual penetration of the vagina, anus or mouth of a person by another person’s body parts or any object.
The Sexual Offences Act being gender neutral so that the offences are allegedly committed whether the alleged perpetrator or the victim is female or male. Under the laws, rape attracts a maximum sentence of life imprisonment. Section 3 of the Act outlines, “A person who commits the offence of rape is liable, on conviction on indictment to imprisonment for life.”
At a media sensitization seminar held earlier this year, High Court Judge Jo-Ann Barlow had pointed to the difficulties faced with directing jurors in rape trials. Not only do jurors, but accused persons, the Judge pointed out, have a difficulty understanding what amounts to rape.
For one, Justice Barlow had highlighted that some jurors still believe that there must be some contact with a penis for rape to occur.
According to the Judge, “When they don’t hear about penis entering the vagina, jurors look at us as judges when we are directing them, as if we are speaking a foreign language.”
In this regard, Justice Barlow had stressed that educating the citizenry is of utmost importance as they need to know that rape is much wider than it was understood to be.
Furthermore, it is important to note that a person under the age of 16 cannot consent to any sexual act, whatever the nature. In fact, it is a criminal offence to engage in any sex act with a person under 16. Section 10 (1) of the Act states, “A person (“the accused”) commits the offence of rape of a child under sixteen years of age (“the complainant”) if the accused – (a) engages in sexual penetration with the complainant or (b) causes the complainant to engage in sexual penetration with a third party.”
Subsection (2) adds, “It is irrelevant whether at the time of the penetration the accused believed the complainant to be sixteen years of age and over.”
In recent times, sexual offences have amounted to more than half of the cases for trial across the Demerara, Berbice and Essequibo criminal assizes. In most cases the accused persons are adult males and the complainants being children as young as nine months.
In August 2019, Director of Public Prosecutions (DPP) Shalimar Ali-Hack, S.C disclosed that the most popular sexual offences her chambers is faced with is rape of a child under 16 years old where there is penetration and sexual activity with a child where there is no penetration; sexual activity with a child family member and this includes both penetration and no penetration; sexual activity with a child by abusing a position of trust and rape of the adult.
Prior to the introduction of the Sexual Offences Court across the three counties, the judiciary struggled to dispose of these cases. In fact, at the close of each assizes it never managed to complete quarter of the cases.
However, since the launch of Sexual Offences courts adjudication has been much swifter. The specialized courtroom is provided for under Section 44 of the Sexual Offences Act of 2010.
In September 2019, Chancellor of the Judiciary Yonette Cummings-Edwards, reported that since the inception of the Sexual Offences Court in Demerara, it has heard 44 cases and seen 31 convictions with 13 acquittals. Sentences for those convicted ranged from nine years to life imprisonment.

 

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