Overthrow of the Sexual Offenses Act

Today I will examine an important and pervasive issue affecting sexual offense cases in the Supreme Court. This issue is when the complainant fails or delays in reporting a sexual crime.

The Sexual Offenses Act Chapter 71, Title 8:03, Laws of Guyana (“SOA”) bears the marginal note “Warning to the Jury” and involves an alleged victim of a sexual offense providing guidance to judges in cases. The complainant delayed reporting the sexual offense or did not report it at all.

Delaying and not reporting sexual abuse

Today, it is common knowledge that victims of sexual crimes often delay telling others or even reporting the crime. Such delays may be hours, days, weeks, months or years.

In 2019, Jean Carrol accused former US president Donald Trump of sexual misconduct, which she said took place in 1996 (28 years ago). He won a multimillion-dollar defamation lawsuit against the former president in 2023 for denying the allegation and disparaging his reputation, according to the Associated Press. In the same article, Jessica Leeds, a former stockbroker, testified that the former president harassed her in the 1970s, while author Natasha Stoynoff said the former president forcibly kissed her in 2005.

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

Victims of sexual abuse may delay reporting this abuse for a variety of reasons, including: i) feelings of guilt or shame; ii) fear of disbelief or reprisal from the abuser (especially where the abuser is powerful, wealthy, or both) or from the abuser’s friends and family; iii) ignorance of the fact that what happened to them was a criminal offence; and iv) avoidance, where the victim wants to avoid confronting what happened by simply ‘moving on’.

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

Effects of delay and non-reporting on social perception

While it is now widely known that victims of sexual abuse routinely delay reporting or reporting sexual abuse or may never report the abuse, many in the community often view the delay or failure to report with suspicion and work to the detriment of the complainant. It is normal today to see or hear ordinary members of society doubt the veracity of an accusation of sexual abuse based solely on the complainant’s delay in preparing the report. ‘If she was raped, why did she wait so long to report it?’ is a common refrain.

Therefore, it should not be a surprise that the jury members also have such views.

This literal reality underlines the importance of section 71 of the SOA.

Basis for Chapter 71 of the SOA

Clause 71 of the SOA provides that, during a hearing where a person is accused of a sexual offence, if there is evidence to show that the victim of the offense delayed reporting the offense or that no notification was made. The judge should: warn the jury that a delay in reporting the crime or failure to report it does not necessarily mean that the allegation is false.

The judge must also inform the jury that there may have been a good reason (such as one of the reasons listed above) for the victim of sexual abuse to delay reporting the abuse or not to report the abuse at all.

This is a mandatory warning and is designed to combat any negative inferences jurors might draw from delayed complaints or the complete absence of complaints.

Effectiveness of mandatory warning

Although mandatory warning is useful, it is difficult to test its effectiveness. Jurors may be asked whether such a warning has influenced their thinking, or judges or lawyers may be asked about their views on the effectiveness of mandatory warning, but this is unlikely to happen in Guyana anytime soon or in the future.