Part 7 – Sexual activity with a child by abusing a position of trust
Breaking Down Sexual Offences
Last week we broke down some of the provisions in the Sexual Offences Act which seek to protect children from people in positions of trust who may seek to use that position to commit sexual offences against them. Today, we continue by breaking down those relevant laws.
As explained last week, section 18 of the Sexual Offences Act creates the offence of ‘sexual activity with a child by a person abusing a position of trust’, while section 19 of the Sexual Offences Act delineates relationships in which an individual holds a position of trust involving minors.
Section 19 demonstrates that positions of trust manifest in myriad contexts, and relationships, each with their own set of implications and considerations.
Position of trust in educational institutions
Section 19 (1) (c) of the Sexual Offences Act says that a person is in a position of trust regarding a minor where the accused looks after those who are receiving education at an educational institution (whether the accused is in the role of a teacher or in any other role) and the minor is receiving, and the accused is not receiving education at that institution. Put differently, one context in which a position of trust arises is within educational settings, and if the accused is involved in the care or supervision of individuals receiving education at an educational institution, and the minor is among these individuals, a position of trust is established. This applies regardless of whether the accused serves as a teacher or occupies another role within the institution, such as a counsellor, welfare officer, or administrative staff.
Several teachers have been charged under this section, although not all have been found guilty. On 13th March 2020, Stabroek News reported that Mohammed Wazir Khan was charged with the offence of sexual activity with a child under the age of 16 by abusing a position of trust. Another teacher from the Bishops’ High School was charged with sexual activity with a child under 18 by abusing a position of trust, although he was not found guilty of that offence, and was freed.
Guardians and spouses of parents and guardians
Additionally, the concept of guardianship plays a significant role in defining positions of trust. Section 19 (1) (d) and (e) provides that a position of trust is also created where the accused is a guardian of the minor child, or where the accused is not appointed guardian, but is the legal or reputed husband or wife of one of the complainant’s parents or guardians. As such, if an accused is the legal guardian of the complainant, a position of trust unquestionably exists, even in cases where the accused is not formally appointed as a guardian but is the spouse of one of the complainant’s parents or guardians.
Interestingly, while I am sure that there have been cases in which individuals were charged with this offence, not many seem to have been reported.
Vocational training institutions
Furthermore, positions of trust extend to scenarios involving vocational training. Section 19 (1) (f) provides that if the child is undergoing vocational training at an institution, and the accused provides individual care, supervision, or support at that institution, a position of trust is established. This acknowledgment underscores the responsibility inherent in such relationships, emphasising the need for vigilance and adherence to legal standards.
Roles in which a position of trust is inherent
It is important to know that various professional roles carry inherent positions of trust. Section 19 (1) (g) provides that individuals occupying roles such as social workers, probation officers, coaches, instructors, ministers of religion, babysitters, or child-minders can be deemed to hold positions of trust if they have regular, unsupervised contact with a child. This recognition underscores the importance of accountability and ethical conduct within these professions.
Section 19 (2) of the Sexual Offences Act is quite important to interpreting, and applying the provisions of section 19 (1), as it provides further clarity on the criteria for determining positions of trust. It stipulates that the accused looks after individuals under the age of 18, if they are regularly involved in their care, training, supervision, or are in sole charge of them. This comprehensive definition ensures that any individual regularly interacting with minors in a caregiving capacity falls within the scope of positions of trust.
Moreover, individual care of the complainant is another crucial aspect. Individual care is deemed to exist if the accused regularly tends to the needs, trains, or supervises the complainant and has unsupervised contact with them as part of this involvement, whether in person or through other means.
In essence, these legal provisions serve to identify and protect children under 18 who may be vulnerable to abuse due to power imbalances inherent in certain relationships. By clearly defining positions of trust, the law aims to prevent exploitation and ensure the safety and well-being of those in potentially vulnerable situations.
Understanding these concepts is paramount for both legal professionals and the public. It provides the foundation for addressing allegations of abuse and ensuring that justice is served while upholding the rights of the vulnerable. Recognising the nuances and complexities within these laws is essential for effectively navigating cases involving allegations of abuse and maintaining the integrity of our legal system.
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.