If the Sexual Offences Bill 2009 laid in Parliament last week is passed in its current form, Guyanese will benefit from the most enlightened legislation in the Caribbean.
Currently before a Parliamentary Select Committee, the Bill addresses all of the obstacles which have made court proceedings almost as traumatic an experience for women and girls as the original crime.
Apart from more certain justice, the law also provides for extensive awareness and training mechanisms to prevent the incidence of crimes of sexual violence.
An important innovation of the Bill is shifting the burden of proof away from the victim onto the accused by a new definition of rape.
At present sexual offence trials, especially rape cases, focus on whether or not the victim consented to the sexual activity.
The spotlight, therefore, is on the victim rather than the accused.
The new Bill requires that the first thing to be established is the presence of coercive circumstances. Only when an exhaustive list of such circumstances has been ruled out, does the question arise of consent taking place.
The court must ask whether violence was used or the victim had cause to fear violence (art.7(2)(a); was violence threatened against others (7(2)(b); ‘the complainant was, and the accused was not, unlawfully detained at the time’ (7(2)(c); was the victim overpowered by drugs (7)(2)(d); was the presence of other people used to intimidate (7)(2)(e); was the complainant asleep (7)(2)(f); was she unable to refuse by virtue of physical or mental disability (7)(2)(g,h); abuse of a position of authority which the complainant could not resist. Should any of these circumstances be present, it can be conclusively presumed that the complainant did not consent to sexual activity.
These features of the Bill have assumed greater significance in recent years because availability of DNA testing has foreclosed on many accused denying that sexual activity took place.
The issue of whether it took place with consent then becomes the centre of attention. The proposed legislation ensures the focus remains on the accused.
Although the threat or use of violence renders women largely powerless over their own physical and sexual integrity, the concept of consent presumes a woman can control the situation if she really tries hard enough.
This myth then encourages exploration by the court of women’s attitudes: was she impulsive, provocative or passive, why didn’t she scream, did she fight, has she consented before? Introducing the element of coercion into the assessment starts to right this balance.
Many features of sexual offences investigations and trials will become more sensitive in future: giving evidence from behind a screen, or by video-link will be available for children (below the age of 18 years); confrontations in police-stations are abolished, as are references to previous sexual history of the victim.
Abolition of Preliminary Inquiries finally takes the Guyanese judiciary from the oral into the print era.
This long-overdue step ought to eliminate a major cause of attrition in rape cases, namely, the interminable delays allowed in the Magistrates’ Court which, along with the casual humiliation by uncaring lawyers, contributed to the abandonment of countless cases.
Measures to address grooming of young girls by male predators are a welcome addition to the law, providing the police with an instrument to counter the growing number of solicitations, abductions and seduction of young girls.
Despite these proposed sweeping changes to procedures in police-stations and courts, victims of sexual offences still have to contend with ingrained and widespread public prejudices.
Public surveys from other societies show that 1 in 3 persons believe a woman is partly or wholly to blame for rape if she flirted with the man and 1 in 4 if she wore revealing clothing or had been drinking.
These figures translate into one-third and one-quarter of jurors sharing these prejudices.
The only weakness of the Bill lies in the multiplicity of official mechanisms charged with promoting sensitivity training, awareness, data-collection and community support.
Too many official agencies charged with vague mandates and dependent on uncertain funding is a recipe for duplication and vacillation.
A more sustainable approach might have seen attention focused on ensuring greater integration of existing services for victims of sexual crimes, leading up to the creation Sexual Assault Referral Centres in which victims can have all their needs addressed in one place and in an integrated manner.
The Bill stands as testimony to the fact that sustained effort can pay dividends.
In this respect the GHRA wishes to recognize the 160 organizations and community groups who supported the ‘Stamp It Out’ campaign, helping to create an environment from which such a Bill could emerge.
In particular we acknowledge Rights Of Children (ROC) activities outside of Parliament on International Day to Stop Violence Against Women in 2006 in which the slogan “Stamp It Out” was coined when women were invited to stamp painted footprints on large zinc sheets.
Guyana Human Rights Association