UNIVERSITY OF GUYANA LA11B – CRIMINAL LAW 11
FACULTY OF SOCIAL SCIENCES SEMESTER II 2024-2025
DEPARTMENT OF LAW
STUDYGUIDE 5
Ms. Alexis Downes-Amsterdam, LL. B (Hons.) UWI; PG Cert. (Dist.) Lond.; PG Dip.
(Dist.) Lond.; LL.M (Merit) Lond., Attorney-at-Law
SEXUAL OFFENCES
o Jenny Mc Ewan, “I Thought She Consented” (2000) Crim. LR 969
o Mennon, “The Law of Rape and Criminal Law Administration with Special Reference
to the Commonwealth Caribbean, 32 ICLQ, p 832
o Brooks, “Marital Rape” 1989 Crim. LR 877
A. INTRODUCTION
The common law recognises various offences of a sexual nature. Each of these has its own
requirements necessary to secure a conviction. Legislation has also been enacted in several
countries which creates a new range of offences and redefines rape.
B. OFFENCES UNDER SEXUAL OFFENCES ACT GUYANA
1. Rape – s. 3
Rape is now defined to include non-consensual sexual penetration, not necessarily penile, of
the vagina, anus or mouth of the victim or causing the victim to engage in sexual penetration
with a third person.
The elements of this offence are –
(a) intentional penetration of the vagina, anus or mouth of the victim or causing the
victim to engage in sexual penetration of a third person;
(b) the victim does not consent; and
(c) the defendant does not reasonably believe that the victim is consenting.
NB. Sexual penetration under the UK Act would be covered here given that for Guyana rape
includes non-penile penetration.
(i) The actus reus: The actus reus is the penetration. See R v. Hughes (1841) 9 C&P.
There must be penetration of the vagina, anus or mouth and any degree of
penetration, however slight, is sufficient.
R v. Kaitamaki [1985] AC 147
R v. Cooper and Schaub [1994] Crim LR 531
(ii) Absence of victim’s consent – A person consents if he agrees by choice and has
the freedom and capacity to make that choice. In R v Olugboja, Dunn LJ said that
‘there is a difference between consent and submission.’
R v. Olugboja[1982] QB 320
R v. Kirk (20028)
R –v- Taran [2006] EWCA Crim 1498
R –v-Wright [2008] EWCA Crim 3473
Presumption against consent - If certain circumstances existed, and the defendant
knew they existed, then the victim is to be taken not to have consented to the
relevant act, unless sufficient evidence is adduced to raise an issue as to whether
the victim consented.
R v Williams [1923] 1 KB 340
McNally v. R [2013] 2 Cr App R 28
R v. Flattery (1877) 2 QBD 410
R v. Tabassum [2000] 2 Cr App R 238
E v. Eebekkay [1995] Crim LR 163
R v. Jheeta [2007] 2 Cr App R 477
(iii) Mens rea
(a) Intentional act - The penetration must be an intentional act. See R –v- Heard [2007]
EWCA Crim 125.
(b) Belief in consent - There must be lack of reasonable belief in V’s consent. Whether a
belief in consent is reasonable is to be determined having regard to all the
circumstances, including any steps the accused took to ascertain whether the
complainant or the third person consents.
R v. Pigg [1982] 1 WLR 762
R v. Satram and Kawall (1984) 78 CAR 14
R v. Ciccarelli [2012] 1 CR App R 190)
Marital Rape – The view at common law was that by marrying, a woman gave consent to
sexual intercourse with her husband, and she could not withdraw that consent while she
remained married to him. Marital rape was then recognized in limited situations and culminated
in R v. R in 1991 where the House of Lords held that marital rape was an offence.
R v Clarence (1888) 22 QBD 23
R v Clarke [1949] 2 All ER 448
R v Miller [1954] 2 QB 282
R v O’Brien [1974] 3 All ER 663
R v Kowalski (1988) 86 Cr. App. R. 339
R v Sharples [1990] Crim LR 198
R v R [1991] 4 All ER 481
Rule was abolished by the Sexual Offence Act Guyana
2. Sexual Assault – s.4
Sexual assault is committed when the defendant intentionally touches the victim or causes the
victim to touch the accused or a third person, the touching is sexual, the victim does not consent
to the touching and the defendant does not reasonably believe the victim consents.
The elements of this offence are –
(a) intentional touching of the victim or causing the victim to touch the accused or a
third person.
(b) the touching must be sexual.
(c) the victim does not consent; and
(d) the defendant does not reasonably believe that the victim is consenting.
When is touching sexual?
R –v- H [2005] EWCA Crim 149; R v H [2005] Crim LR 735
George [1956]
R v. Heard [2007] EWCA Crim 125
R v. Bounekhla [2006] EWCA Crim 1217
Also included is indecent assault under any other law.
Badal v. R (1962) 5 WIR 119
R v. Henry (1964) 7 WIR 85
R v. Scott (1963) 5 WIR 400
R v. Lewis (1965) 9 WIR 333
R v. Scarless and Griffith (1965) 8 WIR 206
State v. Kellman (1975) 26 WIR 438
R v. K [2001] 3 All ER 897
Pooran v. R (1970) 16 WIR 51
Smith v. R (1990) 42 WIR 28
Fairclough v. Whipp [1951] 2 All ER 834
R v. Court [1989] AC 28
NB. This covers not only sexual assault within the meaning of the UK Act but extends to sexual
activity as well.
3. Child Sex Offences.
(a) Offences
(i) Rape of a child under 16 years
(ii) Sexual activity with a child under 16 years
(iii) Causing a child under 16 years to watch sexual act including an image of
sexual activity.
(iv) Meeting a child under 16 years following sexual grooming
(b) Consent - There is no need to prove that there was a lack of consent where the complainant
is a child under 16 yrs.
Belief in consent (whether reasonable or not) is not a defence.
(c) Defences – There are statutory defences which appear to take into consideration teenage
sexual activity.
4. Offences involving family members
Incest is the unlawful and intentional sexual intercourse between two persons who on account
of consanguinity, affinity or adoptive relationship may not marry one another.
The SOA deals with incest by another name –
(i) Sexual activity with a child family member; and
(ii) Sexual penetration with an adult family member
5. Exposure of genitals or Indecent Exposure
A person commits this offence if he/she intentionally exposes his/her genitals and intends that
someone will see his/her genitals and be caused alarm or distress.
Rose v. DPP 2006 Crim LR 993
Elkings v. Cartlidge [1947] 1 All ER 829
Wellard (1884) 14 QBD 63
Mayling [1963] 1 All ER 687
6. Voyeurism
C. OTHER OFFENCES
(i) Obtaining sexual activity with a person with a mental disorder by inducement,
threat or deception
(ii) Intercourse with an animal
(iii) Administering substance with intent to cause a complainant to consent
(iv) Committing any offence with intent to commit a sexual offence
(v) Trespass with intent to commit a sexual offence
(vi) Prostitution Offences
Webb’s case [1963] 3 All ER 177
Dale v. Smith [1967] 2 All ER 1133
Horton v. Meade [1913] 1 KB 154
Behrendt v. Burridge [1977] 1 WLR 29
(vii) Conspiracies, attempts, incitement, aiding and abetting
D. DEFENCES