According to the World Health Organisation, persons with mental disorders are stigmatized and are subject to neglect and abuse, a state of affairs which has been recognised the world over, Guyana being no exception.
It has however been embraced by many, that persons afflicted with mental disorders can in no way be regarded as outcasts of society. As a result, they must be treated with the same respect and dignity as a normal person would expect for him/herself. This is in fact a right and the Government of Guyana in recognising the rights of differently able persons, has brought into being various legislations to cater to such persons.
Such legislations certainly extend to situations where persons with mental disorders are sexually abused. This newspaper recently reported on such a case of abuse suffered by a mentally challenged girl who has since been reported missing.
In its quest to adequately address such cases with a view of dissuading such occurrences in the society, the Government through the Sexual Offences Act 2010 has made it possible for an individual who sexually abuses a person with a mental disorder to be liable on conviction or indictment to imprisonment for life.
The Act outlines that if a person (the accused), who is a care worker, engages sexual activity with an individual who has a mental disorder or causes or incites the complainant to engage in sexual activity with a third party, this could be characterised as rape. The maximum sentence is likely unless prima facie evidence is adduced to raise an issue as to whether the accused knew or could reasonably have been expected to know that the abused was mentally challenged.
The Act also caters to cases where a person (the accused) commits the offence of obtaining sexual activity with a person with a mental disorder by inducement, threat or deception. Summary conviction for such a matter could see the accused being fined $1M and imprisoned for five years and on conviction or indictment to imprisonment for 14 years.
Further still, the Act states that if an individual commits 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 a sexual activity, that individual could be liable on summary conviction to a fine of $1M and to imprisonment for five years and on conviction or indictment, to imprisonment for 10 years.
Although it has served to redefine rape, the New Sexual Offences Act, which became a reality a few years ago, even to date, remains flawed. This observation has been made by State Counsel attached to the Chambers of the Director of Public Prosecution (DPP), Konyo Sandiford.
However, despite the evident flaws, Sandiford said that the Act does not only cater to both the male and female genders but it is one that does not require a whole plethora of requirements to bring matters before the court. Nonetheless, she pointed out that since it is laden with defects, “by the time you get to raise these flaws in court, you could have gone through our penal system which is in fact not a very nice one…”
In light of this, Sandiford is of the view that not only those within the legal system, but members of the public as well, should seek to acquaint themselves with the Act. “You must learn about the new sexual offences act because your son, for instance, could get into trouble just by being around somebody who cries rape. So you should go on the internet and read about it,” the State Counsel advised.
Referred to as the Sexual Offences Act 2010, the legislation could see a young man being charged just for being in the company of a young woman under the age of 16, who later makes an allegation of rape. “…because rape has been redefined, any sort of touching, which can be characterised as sexual touching, could see action being taken,” Sandiford pointed out.
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