A care worker engaging in, causing, or inciting sexual activity with a person with a mental disorder

Last week, we delved into section 24 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (the “SOA”), which addressed 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.

This week, we will explore section 25 of the SOA, a provision that criminalises the act of engaging in, causing, or inciting sexual activity with or in the presence of a person with a mental disorder.

Section 25(1) articulates the offence in a detailed format, outlining: i) the specific actions that are criminalised, ii) the circumstances under which these actions are considered offences, and iii) the protections the SOA affords to individuals with mental disorders.

The accused and the complainant

In cases under section 25, the complainant is the individual with a mental disorder who is the subject of the alleged sexual activity. The accused is the person who allegedly engages in, causes, or incites the sexual activity with or in the presence of the complainant.

It is common in such cases for the mental disorder of the complainant to impair their ability to understand or report the nature of the acts they are subjected to. As such, third parties who witness such acts or become aware of them may act as virtual complainants by reporting these incidents.

The criminal conduct

According to section 25(1)(a), an offence occurs when the accused either engages directly in sexual activity with a complainant with a mental disorder, causes such activity to occur, or incites another to engage in such activity with a third party. It is also an offence for the complainant to cause or incite the complainant to perform sexual acts, including masturbation.

To be charged under section 25(1)(b), the accused must either know or reasonably be expected to know that the complainant has a mental disorder. This knowledge component is crucial for establishing culpability under this section.

Section 27 of the SOA seeks to define who constitutes a care worker for the purpose of sections 25 and 26. It says that a care worker is a person involved in the care of another person in various ways.

This includes where: the complainant is accommodated and cared for in a care home, community etc, or ii) the accused has functions to perform in the home in the course of employment which has brought or is likely to bring the accused into regular face-to-face contact with the complainant: see section 27 (a) (i) and (ii) of the SOA.

Additionally, a person is a care worker if the complainant is a patient for whom services are provided: i) by a public health body or an independent medical agency; or ii) in an independent clinic or an independent hospital, and the accused has functions to perform for the body or agency or in the clinic or hospital in the course of employment which has brought or is likely to bring the accused into regular face-to-face contact with the complainant: see section 27 (b) (i) and (ii) of the SOA.

Further, if the accused is, whether in the course of employment, a provider of the care, assistance, or services to the complainant in connection with the complainant’s mental disorder, and as such, has had or is likely to have regular face-to-face contact with the complainant: see section 27 (c) of the SOA.

Penalties

Violations of section 25 carry significant penalties, emphasising the severity of exploiting individuals with mental disorders sexually. The Act specifies both fines and imprisonment terms, with stricter penalties imposed depending on the severity of the offence and whether it is tried summarily or on indictment.

Section 25 (3) provides that where this offence includes sexual penetration, the accused is liable on conviction on indictment to imprisonment for life.

Section 24 provides that unless section 25 (3) applies, a person found guilty under this offence is liable: i) under summary conviction, to a fine of $1 million and to imprisonment for five years, ii) or on conviction on indictment, to imprisonment for ten years.

Conclusion

Section 25 of the SOA reinforces the commitment of Parliament to protect individuals with mental disorders from sexual exploitation. By clearly defining what constitutes an offence, its conditions, and the penalties involved, the law provides a crucial safeguard for these vulnerable individuals. It also recognizes that under specific, ethically justified circumstances, certain actions may not be penalizable, highlighting the law’s nuanced understanding of complex human situations.

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.