Sexual activity with a child family member

Breaking Down Sexual Offences – Part 6

In previous articles, we saw that under the Sexual Offences Act (“the SoA”), the age of consent is 16, and that any sexual activity, including sexual intercourse, with a child under the age of 16 is illegal, regardless of whether that child agreed to the sexual activity (see sections 10 and 11 of the SoA). We also saw that there are exceptions to these rules where the child under 16 is between the ages of 12 to under 16 years.

Importantly, these sections pertain to situations where the accused and the alleged victim are not related. The SoA treats sexual activity between an accused and a child family member differently. Section 16 of the SoA provides that it is an offence to engage in sexual activity with a child relative (that is, any relative under 18): see section 16 (1) of the SoA.

It is important to note that the age of consent, and consent itself, are irrelevant to this offence. If the alleged victim is a child, and it is proven that the sexual acts alleged took place, the accused is likely to be found guilty. This is largely because this offence is essentially a reformulation of the the offence of incest which was previously found in Guyana’s Criminal Law (Offences) Act (“the CLoA”), Chapter 8:01, Laws of Guyana. According to the Merriam-Webster online dictionary, incest refers to sexual intercourse between persons so closely related that they are forbidden by law to engage in such activity, and to marry. Notably, however, the SoA only criminalises sexual activity between an accused and a child relative. It does not criminalise sexual activity between adult relatives, which suggests that, in Guyana at least, it is not a criminal offence for consensual adult relatives to engage in sexual activities, including intercourse.

Specifically, where the accused person engages in sexual activity with a child relative, caused the child to engage in sexual activity with a third party, or causes the child to perform sexual acts, such as masturbation, the offence is committed.

This offence is a triable-either-way offence (the Director of Public Prosecutions [DPP] has an option of whether an accused will be tried in the Magistrates’ Court or in the High Court) if the sexual activity complained of does not include sexual penetration. In such cases, where the person is tried in the Magistrates’ Court and found guilty, they are liable to a fine of $1 million, and if they are tried in the High Court and found guilty, they will face imprisonment for 14 years. Importantly, where the conduct complained of includes sexual penetration, the DPP must seek to prosecute the accused in the High Court. There is no leeway to choose between a trial in the High Court or Magistrates’ Court. Where a person accused of this offence is alleged to have engaged in sexual penetration with a child, they face the possibility of life-imprisonment: see section 16 (3) of the SoA.

Which relatives does the section pertain to?

Now, the act criminalises sexual activities with child relatives under 18, but which relatives does the Act apply to? As we know, relatives can be as close as mother and son, or brother and sister, but your mother’s brother’s nephew’s sister is also your relative. Fortunately, the SoA clarifies the categories of relatives it applies to under section 17.

The first category is specified under section 17 (1) (a), which provides that a family relation between the accused and the child for the purposes of section 16 exists where one of them is the other’s parent, grandparent, brother, sister, half (step) – brother or sister, aunt (the sister or half-sister of a person’s parent), uncle (the brother or half-brother of a person’s parent), or where the accused is the alleged victim’s foster parent.

The second category is provided under section 17 (1) (b). This provision states that persons are relatives for the purpose of section 16 where the accused and the alleged victim live or have lived in the same household, or the accused is or has regularly involved in caring for, training, supervising, or being in sole charge of the complainant, and: one of them is or has been the other’s step parent; where the accused and the alleged victim are cousins (meaning the child of an aunt or uncle (see section 17 (2) (c). As such, second, third or fourth cousins do not qualify); or whether the accused and alleged victim are stepsiblings. As is clear, the Act casts a wide net across possible familiar relationships to ensure all of the common, and even not-so-common relationships are captured, and to ensure that if there is sexual activity between an accused and a child, and they share any of these relationships, the action is captured.

The Act, however, goes even further. Section 17 (1) (c) provides that persons are considered relatives for the purpose of section 16 of the SoA where the accused and the complainant live in the same household, and the accused is regularly involved in caring for, training, supervising, or being in sole charge of the complainant. Technically, this is not a family relationship, but it is defined as such for the purpose of this Act because the drafters of the legislation and lawmakers are aware of the fact that people who sexually molest children are often those who are very close to them, often (but not necessarily) living with them, and being regularly involved in various aspects of their lives, such as their training or supervision.

Indeed, many studies have shown that the vast majority of children who are sexually abused knew the person who abused them before the abuse. This section therefore provides iron-clad protection to children from relatives who may seek to use those relationships, and the trust and proximity they provide to sexually abuse children.

This section is yet another part of the framework in Guyana’s SoA aimed at protecting children. Of course, laws are only as good as their enforcement. As such, if you are aware of any cause in which a relative within the meaning of the SoA has sexually abused a child, please report this to the police.

Next week we will continue to examine the framework which exists to protect children by looking at section 18, which creates the offence of sexual activity with a child by abusing a position of trust.

Mr Chevy Devonish is a Senior Legal Advisor with the Attorney General’s Chambers and Ministry of Legal Affairs, and a Part-time Lecturer at the University of Guyana. You can contact Mr Devonish at chevydevonish@gmail.com.