Arranging or facilitating the commission of a child sex offence

This week we will break down Section 21 of the Sexual Offences Act (SOA), Cap 8:03, Laws of Guyana, an important part of Guyana’s legislative framework aimed at addressing and mitigating child sex offences within Guyana. Importantly, this provision balances the objective of preventing child sex offences with considerations for actions taken in a child’s best interests. The analysis is structured to distil the legal framework, implications, and nuances embedded in this section.

Overview of Section 21

Many of the persons who are ultimately charged or convicted of child sexual offences are those persons who engaged in the offensive conduct. For example, the person(s) accused of sexual activity of a child, sexual assault of a child, or sexual activity with a child by abusing a position of trust. There are, however, a different category of offenders: persons who may have arranged or facilitated the offence against the child. Section 21 of the SOA addresses such offences. The section sets out the conduct which is required for a person to be guilty of committing this offence; the exceptions; and the penalties a person will face upon conviction. This section is comprehensive; designed to cast a wide net to prevent not only direct perpetration and participation in child sex offences but also the orchestration, facilitation, or encouragement of such child sexual offences.

Subsection (1): The Core Offence

The core offence under subsection (1) is defined as the intentional arrangement or facilitation by an individual (“the accused”) of an act that, when executed, will constitute a child sex offence under specified sections of the Act (sections 10, 11, 12, 13, 16, or 18 of the SOA). Put differently, any person who takes steps to arrange for any of those offences to be committed, even if they do not engage in the offences themselves, commits the offences or arranging or facilitating the commission of a child sexual offence. It is necessary to note that if the person who facilitates the commission of a sexual offence against a child is also the perpetrator of that sexual offence, they are likely to be charged with the substantive offence, as opposed to arranging, or facilitating the offence. Therefore, this offence is largely geared toward capturing persons who did not commit the sexual offence but facilitated its commission.

Further, this offence is applicable regardless of the geographic location where the intended criminal act occurs, reflecting the global jurisdictional reach against child sex offences facilitated or arranged from Guyana. This means that if a person in Guyana, arranges or facilitates the commission of a sexual offence against a child in the United States of America, Barbados, or any other country, that person still breaks Guyana’s laws, and can be charged, prosecuted, convicted, and sentenced.

This provision is particularly significant for its broad application, capturing not only those who directly intend to commit the offence but also those who arrange or facilitate acts by others which they believe will lead to the commission of such offences. This includes individuals who, through their actions, enable, encourage, or provide the means for child sex offences to be committed by third parties. Such conduct may include: connecting children with persons who intend to commit sexual offences against them; transporting a child to be subject to a child sexual abuse; or even providing the location where the child is offence is committed or is to be committed.

Subsections (2) and (3):

Exemptions and Protections

Subsections (2) and (3) of the SOA introduce exemptions to the core offence, carving out a space where the accused’s actions are intended for the child’s protection. For the exemption to apply, the accused must believe that their arrangement or facilitation is for another’s actions not directly intended by them or intended to be done by another but falls within the ambit of protecting the child against sexual offences. This includes protection from sexually transmitted infections, physical harm, pregnancy, and promoting emotional well-being without the intent of sexual gratification or encouraging the participation in a sexual offence. Admittedly, section 21 (2) and (3) of the SOA may be challenging for laypersons to interpret, so that it may be difficult to understand the circumstances which it speaks to. One such example may be a case where a person arranges for a child to be tested by a doctor, but that doctor engages in sexual activity with the child. In such a case, the person arranged or facilitated what he believed would be a medical examination. He did not intend that the doctor would engage in sexual activity with the child. As such, though he, in fact, played a part in these events taking place, the law does not intend that he be punished for this.

These provisions underscore a critical balance in the legislation, acknowledging that actions taken in a child’s best interest, even if superficially aligning with the actions described in subsection (1), should not be penalised if the goal is the child’s protection and welfare.

Subsection (4): Sentences

The penalties for violating Section 21 are stringent, reflecting the seriousness with which Guyana’s legal system treats child sex offences. Conviction can lead to a fine of $1 million and imprisonment for five years on summary conviction, or up to ten years’ imprisonment upon conviction on indictment. These penalties underscore the legislative intent to deter the facilitation or arrangement of child sex offences through substantial punitive measures.

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.

Legal and Social Implications

The legal framework established by Section 21 is part of a broader strategy to combat child sex offences by targeting not only the direct perpetrators but also those who create the conditions for such crimes to occur. It is a recognition of the complex dynamics involved in child exploitation and the necessity of addressing these crimes from multiple angles.

From a social perspective, this section reflects a societal commitment to the protection of children, emphasising both the prevention of harm and the importance of safeguarding the physical and emotional well-being of minors. It acknowledges the role of adults in creating environments where children are protected from exploitation and abuse.

Challenges and Considerations

While Section 21 is comprehensive, its effective implementation raises several challenges. These include the need for robust investigative tools to prove the intention behind the accused’s actions, distinguishing between actions taken for the child’s protection and those with ulterior motives. Furthermore, the provision requires a careful balance between preventing exploitation and not unduly penalising well-intentioned efforts aimed at child welfare.

Section 21 of the SOA, is a critical component of the legal arsenal against child sex offences. By targeting the facilitation and arrangement of these crimes, the provision aims to deter a broad range of activities that contribute to child exploitation. However, its exemptions for actions taken in the child’s best interest highlight the legislative intent to protect children comprehensively, not just from sexual offences but also from broader harm. The success of this provision, however, will depend on the delicate balance between deterrence, protection, and the challenges of enforcement.