Dismantling the Sexual Offenses Act

Today I will consider an important and common issue which affects trials of sexual offenses in the High Court. This involves the failure or delay of a complainant to report a sexual offence.

Section 71 of the Sexual Offenses Act, Cap 8:03, Laws of Guyana (“SOA”) is entitled “Warning to the Jury” in the marginal note and includes advice to judges in cases where an alleged victim of ‘a sexual offense/ The complainant was late in reporting the sexual offense or did not report at all.

Delay and non-reporting of sexual abuse

Today, it is common knowledge that victims of sexual offenses are often slow to tell anyone about the offense, or even to report it. These delays can take hours, days, weeks, months or years.

In 2019, Jean Carrol accused former US President Donald Trump of sexual abuse which she claimed took place in 1996 (28 years ago). According to the Associated Press, she won a multimillion-dollar defamation lawsuit against the former president in 2023 for dismissing the allegations and disparaging his reputation. In the same article, Jessica Leeds, a former stockbroker, testified that the former president groped her in the 1970s, while Natasha Stoynoff, a writer, said the former president kissed her by force in 2005.

Additionally, in 2023, Joan Tarshis accused Bill Cosby of sexual abuse in 1969 or 1970. Many other people have accused him of drugging and raping them decades ago.

Victims of sexual abuse may delay reporting abuse for a variety of reasons, including: i) feelings of guilt or shame; ii) fear of not being believed or of retaliation from the perpetrator (especially when the perpetrator is powerful, wealthy, or both), or from the perpetrator’s friends and family; iii) ignorance of the fact that what happened to them constitutes a criminal offense; and iv) avoidance, where the victim simply wishes to avoid dealing with what happened by “moving on.”

For these same reasons, many victims of sexual abuse never report the abuse. Thus, it is common for criminal investigations and prosecutions to begin only after reports have been made by the victim’s family or friends.

Impacts of delays and non-declaration on social perception

Although it is now common knowledge that victims of sexual abuse routinely delay reporting sexual abuse, or even never report it, many people in society often view this delay or failure to report with suspicion and to the detriment of the complainant. It is normal today to see or hear ordinary citizens doubt the authenticity of an accusation of sexual abuse based solely on the complainant’s delay in reporting. “Why does he/she wait so long to report if he/she is a victim of rape” is a common refrain.

It should therefore not be surprising that members of juries can also express such opinions.

This factual reality highlights the importance of Section 71 of the SOA.

The Heart of SOA Section 71

Section 71 of the SOA states that, at a trial where a person is accused of a sexual offence, if there is evidence to suggest that the victim of the offense was late in reporting the offence, or there has been no report, the judge must: warn the jury that the delay or failure to report the offense does not necessarily mean that the allegation is false.

The judge must also inform the jury that there may be a good reason (such as one of the reasons mentioned above) why a victim of sexual abuse may delay reporting the abuse or not report it at all. All.

This is a mandatory warning intended to combat negative inferences that jurors may be inclined to draw from late complaints or no complaints at all.

The effectiveness of the mandatory warning

Although the mandatory warning is useful, it is difficult to test its effectiveness. Jurors could be asked if such a warning influenced their thinking, or asked judges or lawyers involved for their opinion on the effectiveness of the mandatory warning, but this is unlikely to happen in Guyana anytime soon, if ever .