Engaging in, causing, or inciting sexual activity with a person with a mental disorder

Last week, we examined Section 23 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (the “SOA”), which criminalises the act of obtaining sexual activity from individuals with mental disorders through inducement, threat, or deception.

This week, we will break down Section 24 of the SOA, a provision that addresses the offence of causing a person with a mental disorder to watch a sexual act or to look at an image of a person engaging in sexual activity.

Section 24(1) defines the offence in a multipart format, identifying: i) the actions that constitute the offence, ii) the conditions under which these actions become criminal, and iii) the specific protection the SOA extends to individuals with mental disorders.

The accused and the complainant

For this offence, the accused is the person who is accused of committing the offence, that is to say, the person accused of causing a person with a mental disorder to watch a sexual act or to look at an image of a person engaging in sexual activity. The complainant is the person who alleges that the person with a mental illness is subjected to watching a sexual act or an image of such an act.

There may be instances where a person’s mental illness renders them unable to report what they are being made to do, or makes them incapable of realising the nature of what they are being made to look at. In such circumstances, it is not unheard of for a person who witnesses the commission of the offence to report what has taken place. In this case, that person would be the virtual complainant.

The criminal conduct

According to Section 24(1)(a) of the SOA, the offence occurs when the accused causes the complainant to watch another person engaging in sexual activity or to look at an image of someone engaged in such activity. The offence is committed even if the complainant with the mental disorder agrees to watch persons engage in sexual activity or look at an image of sexual activity. Importantly, such activity constitutes an offence even if the complainant agrees because the legislation presumes that the complainant’s mental disorder renders them incapable of giving true consent to such activities. The legislation also assumes that persons seeking to cause a person with a mental illness to watch others engage in sexual activity, or to watch images of sexual activity are seeking to take advantage of these vulnerable persons. This presumption, therefore, aims at protecting these vulnerable people from sexual exploitation.

Agreement under coercion

There may be instances where a complainant with a mental disorder agrees to such activity because they are induced, threatened, or deceived. The law makes provision for these circumstances as well. Section 24(1)(b) of the SOA specifies that the offence is committed even if the complainant agrees to the act, provided that this agreement is obtained through inducement, threat, or deception by the accused for the purpose of obtaining that agreement.

As such, if Mark, knowing that his neighbour Alice, who has been diagnosed with schizophrenia, is easily influenced, offers her gifts to coerce her to watch explicit videos, he can be deemed an offender. Even though Alice agrees, Mark’s action constitutes an offence under Section 24 as it involves inducement to secure consent from someone he knows to be vulnerable due to her mental condition.

Also, if Lucy deceives her friend John, who has a mental disorder, into believing that watching certain sexual acts is a necessary part of a therapy session, she can be deemed an offender. Lucy’s actions constitute a criminal offence under Section 24 as John’s consent was obtained under false pretences.

Awareness of the mental disorder

Importantly, for a person to be charged under Section 24(1)(c), he or she must know that the complainant has a mental disorder. Alternatively, if the accused could reasonably be expected to know that the accused has a mental disorder, this is enough.

The Act specifies the legal consequences for violating Section 24, outlining fines and imprisonment terms to underscore the seriousness of exploiting individuals with mental disorders in such a manner. Section 24(2) provides that summary conviction can result in a fine and up to five years’ imprisonment, whereas conviction on indictment can lead to ten years’ imprisonment.

Exceptions

Interestingly, and importantly, Section 24(3) carves out exceptions. As such, where the accused’s actions are done for protective health reasons, physical safety, prevention of pregnancy, or the emotional well-being of the complainant, provided that they are not for the purpose of obtaining sexual gratification or encouraging the complainant’s participation in the offensive act, they might not constitute an offence.

Conclusion

Section 24 of the SOA is yet another provision that underscores the Parliament’s commitment to protecting individuals with mental disorders from being exploited through the viewing of sexual acts or images. By delineating the offence, its conditions, and the associated penalties, the provision serves as a crucial protective measure. It also acknowledges that in very specific and ethically justified contexts, actions that might otherwise constitute an offence can be permissible, highlighting the law’s nuanced approach to safeguarding the vulnerable while recognising the complexity of human interactions.

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.