Criminal Code (Sexual Offences) Amendment Act 1993

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Criminal Code (Sexual Offences) Amendment Act 1993
Laws of Bermuda
Annual Volume of Public Acts 1993 : 2

1

BERMUDA
1993 : 2

CRIMINAL CODE (SEXUAL OFFENCES) AMENDMENT ACT 1993

[Date of Assent 16 March 1993]

[Operative Date 1 June 1993]

WHEREAS it is expedient to make improved provision in the
Criminal Code for sexual offences, and to provide for connected matters:

Be it enacted by The Queen's Most Excellent Majesty, by and with
the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title
1 This Act may be cited as the Criminal Code (Sexual Offences)
Amendment Act 1993.

Interpretation
2 In this Act, unless the context requires otherwise—

"the Code" means the Criminal Code;

"section" means section of the Code.

Amends s3
3 Section 3 is amended by inserting the following definition in its
proper alphabetical place in the section—

""complainant" means the victim of an alleged offence;".

Amends s180
4 Section 180 is amended—

CRIMINAL CODE (SEXUAL OFFENCES) AMENDMENT ACT 1993

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(a) by deleting "ten years, with or without whipping" from
subsection (1) and substituting "twenty years";

(b) by deleting "five years, with or without whipping" from
subsection (2) and substituting "fifteen years";

(c) by deleting "evidence; or" from paragraph (b) of
subsection (3) together with the whole of paragraph (c),
and substituting "evidence,".

Amends s181
5 Section 181 is amended by deleting "twelve months" and "two
years" from subsection (1) and substituting respectively "five years" and
"fifteen years".

Amends s182
6 Section 182 is amended—

(a) by deleting "five years" from subsection (2) and
substituting "fifteen years";

(b) by deleting "twelve months" and "two years" from
subsection (3) and substituting respectively "five years"
and "fifteen years".

Adds new ss182A and 182B
7 The following new sections are inserted in the Code immediately
after section 182—

"Sexual exploitation of young person
182A (1) A person who—

(a) for a sexual purpose touches, directly or
indirectly, with a part of the body or with an
object, any part of the body of a young
person; or

(b) for a sexual purpose invites, counsels or
incites a young person to touch, directly or
indirectly, with a part of the body or with an
object, the body of any person, including the
body of the person who so invites, counsels
or incites and the body of the young person,

is guilty of a felony and is liable—

(aa) on conviction on indictment to imprison-
ment for fifteen years;

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Annual Volume of Public Acts 1993 : 2

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(bb) on summary conviction to imprisonment for
five years.

(2) "Young person" in this section means a person
under the age of fourteen years.

Sexual exploitation of young person by a person in a position
of trust
182B (1) A person who, being in a position of trust or
authority towards a young person or being a person with whom a
young person is in a relationship of dependency—

(a) for a sexual purpose touches, directly or
indirectly, with a part of the body or with an
object, any part of the body of the young
person; or

(b) for a sexual purpose invites, counsels or
incites a young person to touch, directly or
indirectly, with a part of the body or with an
object, the body of any person, including the
body of the person who so invites, counsels
or incites and the body of the young person,

is guilty of a felony and is liable—

(aa) on conviction on indictment to imprison-
ment for twenty years;

(bb) on summary conviction to imprisonment for
five years.

(2) "Young person" in this section means a person
under the age of sixteen years.".

Repeals and replaces s190
8 Section 190 is repealed and the following section is substituted—

"Age and consent in certain cases
190 (1) Where an accused is charged with an offence-

(a) under section 182A; or

(b) under section 182B; or

(c) under section 323 or 324 or 325 or 326 in
respect of a complainant under the age of
sixteen years,

it is not a defence that the complainant consented to the activity
that forms the subject-matter of the charge.

CRIMINAL CODE (SEXUAL OFFENCES) AMENDMENT ACT 1993

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(2) Notwithstanding paragraph (a) of subsection (1),
where an accused is charged with an offence under section 182A,
it is a defence that the complainant consented to the activity that
forms the subject-matter of the charge if the accused—

(a) is under the age of sixteen years; and

(b) is less than three years older than the
complainant; and

(c) is neither in a position of trust or authority
towards the complainant nor a person with
whom the complainant is in a relationship of
dependency.

(3) No person under the age of fourteen years shall
be tried for an offence under section 182A unless he is in a
position of trust or authority towards the complainant or is a
person with whom the complainant is in a relationship of
dependency.

(4) It is not a defence—

(a) to a charge under section 182A, that the
accused believed that the complainant was
fourteen years of age or older at the time the
offence is alleged to have been committed; or

(b) to a charge under section 182B, or, where
on a charge under section 323 or 324 or 325
or 326 it is alleged that the complainant
consented to the activity that forms the
subject-matter of the charge, to a charge
under the said section 323 or 324 or 325 or
326, as the case may be, that the accused
believed that the complainant was sixteen
years of age or older at the time the offence
is alleged to have been committed,

unless the accused proves that he had reasonable cause to have,
and did in fact have, that belief at the time:

Provided that a defence shall not be available by virtue of
this subsection—

(aa) in any circumstances, to an accused who
was twenty-one years of age or older at that
time; or

(bb) if an accused has once availed himself of
such a defence to a charge under any of

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sections 182A, 182B, 323, 324, 325 and
326, ever again to that accused.

(5) Notwithstanding subsection (4), it is not a
defence to a charge under section 182A or 182B or 323 or 324 or
325 or 326 that the accused believed that the complainant
consented to the activity that forms the subject-matter of the
charge if the complainant was in fact under fourteen years of age
at the time the offence was committed.

(6) Except as otherwise expressly stated, it is
immaterial, in the case of any of the offences constituted by the
foregoing provisions of this Part or specified in subsection (1) of
this section committed with respect to a complainant under a
particular age, that the accused did not know that the
complainant was under that age, or believed that the complainant
was not under that age.".

Amends s233
9 Subsection (1) of section 233 is repealed and the following
subsections are inserted in, or, as the case may be, added to, the section
in their proper numerical places—

"(1) A person who—

(a) strikes, touches, or moves, or otherwise
applies force of any kind to, the person of
another, either directly or indirectly, without
that other's consent; or

(b) by any bodily act or gesture attempts or
threatens to apply force of any kind to the
person of another without that other's
consent, under such circumstances that the
person making the attempt or threat has
actually or apparently a present ability to
effect his purpose,

is said to assault that other, and the act is called an assault.

(3) For the purposes of subsection (1), there is no
consent —

(a) where the complainant submits to conduct
alleged to be an assault or does not resist
that conduct by reason of—

(i) the application of force to the
complainant or to a person other
than the complainant; or

CRIMINAL CODE (SEXUAL OFFENCES) AMENDMENT ACT 1993

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(ii) threats or fear of the application of
force to the complainant or to a
person other than the complainant;
or

(iii) fraud; or

(b) where—

(i) the complainant expresses, by words
or conduct, a lack of agreement to
engage in the activity; or

(ii) the complainant, having consented
to engage in the activity, expresses,
by words or conduct, a lack of
agreement to continue to engage in
the activity; or

(iii) any agreement is expressed by the
words or conduct of a person other
than the complainant; or

(iv) the accused induces the complainant
to engage in the activity by abusing a
position of trust, power or authority;
or

(v) the complainant is incapable of
consenting to the activity.

(4) Nothing in subsection (3) shall be construed as
limiting the circumstances in which no consent is obtained.

(5) In relation to an assault, where an accused
alleges that he believed that the complainant consented to the
conduct alleged to be the assault, the judge, if satisfied—

(a) that there is sufficient evidence; and

(b) that the evidence, if believed by the jury,
would constitute a defence,

shall instruct the jury that they must, when reviewing all the
evidence relating to the determination of the honesty of the
accused's belief, consider the presence or absence of reasonable
grounds for that belief.

(6) The expression "assault" in this section applies
to—

(a) a sexual assault; and

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(b) an act of a kind described in subsection (1)
or (2) of section 325 or in subsection (1) of
section 326; and

(c) any other form of assault.".

Repeals and replaces Part XVIII
10 Part XVIII of the Code is repealed and the following provisions are
substituted—

"PART XVIII
SEXUAL ASSAULTS

Sexual assault
323 A person who commits a sexual assault is guilty of a
felony and is liable—

(a) on conviction on indictment to
imprisonment for twenty years;

(b) on summary conviction to imprisonment for
five years.

Sexual assault by person with AIDS, etc
324 (1) It is a sexual assault if a person—

(a) knowing that he has a sexual disease, does
a sexual act which -

(i) involves contact between any part of
his body and any part of the body of
another person (whether or not that
other person is his spouse or
consents to the act); and

(ii) is capable of resulting in the transfer
of body fluids to that other person;
and

(b) before he does the act does not inform that
other person that he has the disease, either
identifying the disease or making clear to
that other person that he has a disease to
which section 324 of the Criminal Code
applies.

(2) "Sexual disease" in subsection (1) of this section
and in subsection (2) of section 325 means Acquired Immune
Deficiency Syndrome or hepatitis B or Human Immunodeficiency
Virus (HIV) infection.

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(3) This section is without prejudice to the existence
of other kinds of sexual assault.

Serious sexual assault
325 (1) A person commits a serious sexual assault, if, in
committing a sexual assault, he—

(a) carries, uses, or threatens to use, a weapon
or an imitation of a weapon; or

(b) causes bodily harm to the complainant; or

(c) threatens to cause bodily harm to a person
other than the complainant; or

(d) is a party to the offence with another person.

(2) A person also commits a serious sexual assault
if, knowing that he has a sexual disease, he commits a sexual
assault other than a sexual assault under section 324.

(3) A person who commits a serious sexual assault is
guilty of a felony and is liable on conviction on indictment to
imprisonment for thirty years.

Aggravated sexual assault
326 (1) A person commits an aggravated sexual assault
if, in committing a sexual assault on another person, he wounds,
maims or disfigures that other person or endangers his life.

(2) A person who commits an aggravated sexual
assault is guilty of a felony and is liable on conviction on
indictment to imprisonment for life.

Corroboration not required
327 The rules requiring corroboration in sexual offences are
abrogated and, accordingly, where an accused is charged with a
sexual offence—

(a) corroboration is not required for a
conviction; and

(b) the judge shall not instruct the jury that it is
unsafe to find the accused guilty in the
absence of corroboration.

Rules about recent complaint abrogated
328 The rules relating to evidence of recent complaint are
abrogated with respect to sexual offences.

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Evidence of complainant's sexual activity
329 (1) If at a trial a person is for the time being charged
with a sexual offence, no evidence shall be adduced, and no
question in cross-examination shall be asked, at the trial about
any sexual activity of the complainant, other than the sexual
activity that forms the subject-matter of the charge, whether with
the accused or with any other person or with any animal or thing,
unless the judge gives leave therefor on the grounds that the
evidence or question—

(a) relates to specific instances of sexual
activity; and

(b) is relevant to an issue in the case; and

(c) has significant probative value or relevance
that is not substantially outweighed by the
danger of prejudice to the proper
administration of justice.

(2) Where before a special court or at a preliminary
inquiry any person is for the time being charged with a sexual
offence, no evidence shall be adduced or any question asked
about any sexual activity of the complainant, other than the
sexual activity that forms the subject-matter of the charge,
whether with the accused or with any other person or with any
animal or thing, unless the chairman or the magistrate gives
leave therefor on the grounds specified in paragraphs (a) to (c) of
subsection (1).

(3) A judge shall not give leave under subsection (1),
and a chairman or magistrate shall not give leave under
subsection (2), except on a special application made to him, and
shall, in deciding whether or not to give such leave, take into
account—

(a) the interests of justice, including the right of
the accused to make a full answer and
defence; and

(b) where the evidence or question is to be
considered by a jury, the risk that the
evidence or question may unduly arouse
sentiments of prejudice, sympathy or
hostility in the jury; and

(c) the right of the complainant and of every
individual to personal security and to the
full protection and benefit of the law; and

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(d) the need to remove from the fact-finding
process any discriminatory belief or bias;
and

(e) the potential prejudice to the complainant's
personal dignity and right of privacy; and

(f) whether there is a reasonable prospect that
the evidence or question will assist in
arriving at a just determination in the case;
and

(g) society's interest in encouraging the
reporting of sexual offences; and

(h) any other factor that the judge or the
chairman or the magistrate considers
relevant.

(4) An application referred to in subsection (3) is an
application for a hearing, and must be made in writing and set
out—

(a) detailed particulars of the evidence that the
accused seeks to adduce or of the question
or questions that he seeks to ask; and

(b) the relevance of that evidence or that
question or those questions to an issue in
the case;

and a copy of the application must be delivered to the prosecutor
and to the clerk of the court not less than two clear days before
the hearing of the application.

(5) At the hearing of such an application—

(a) the jury, where a jury are involved, and the
public, shall be excluded; and

(b) the complainant is not a compellable
witness.

Reputation evidence
329A In proceedings in respect of a sexual offence, evidence of
sexual reputation, whether general or specific, is not admissible
for the purpose of challenging or supporting the credibility of the
complainant.

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Spouse may be charged
329B A husband or wife may be charged with, and convicted of,
an offence under section 323 or 324 or 325 or 326 in respect of
his or her spouse, whether or not the spouses were living together
at the time the activity that forms the subject-matter of the
charge occurred.

Restrictions on publicity in relation to trial of sexual
offences
329C (1) After a person has been arrested and charged
with a sexual offence, no matter likely to lead members of the
public to identify a person as the complainant in relation to that
charge shall be published in a written publication available to the
public, or be broadcast, except as authorized by a direction given
under this section.

(2) If, before the commencement of a trial at which a
person is charged with a sexual offence, he or another person
against whom the complainant may be expected to give evidence
at the trial applies to a judge for a direction under this subsection
and satisfies the judge—

(a) that the direction is required for the purpose
of inducing persons to come forward who are
likely to be needed as witnesses at the trial;
and

(b) that the conduct of the applicant's defence
or case at the trial is likely to be
substantially prejudiced if the direction is
not given,

the judge shall direct that subsection (1) shall not, by virtue of the
accusation alleging the sexual offence in question, apply in
relation to the complainant.

(3) If at a trial at which a person is charged with a
sexual offence the judge is satisfied—

(a) that the effect of subsection (1) is to impose
a substantial and unreasonable restriction
upon the reporting of proceedings at the
trial; and

(b) that it is in the public interest that the
restriction should be removed or relaxed,

he shall direct that subsection (1) shall not apply to such matter
relating to the complainant as is specified in the direction; but a

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direction shall not be given under this subsection by reason only
of an acquittal of an accused at the trial.

(4) If a person who has been convicted of a sexual
offence and has given notice of appeal to the Court of Appeal
against the conviction, or notice of an application for leave so to
appeal, applies to the Court of Appeal for a direction under this
subsection and satisfies that Court—

(a) that the direction is required for the purpose
of obtaining evidence in support of the
appeal; and

(b) that he is likely to suffer substantial
injustice if the direction is not given,

that Court shall direct that subsection (1) shall not, by virtue of
an accusation which alleges a sexual offence and is specified in
the direction, apply in relation to a complainant so specified.

(5) If any matter is published or broadcast in
contravention of subsection (1) or (6), each of the following
persons, namely—

(a) in the case of publication in a newspaper or
periodical, any proprietor, any editor and
any publisher of the newspaper or
periodical;

(b) in the case of any other publication, the
person who publishes the publication;

(c) in the case of a broadcast, any body
corporate which transmits or provides the
programme in which the broadcast is made,
and any person having functions in relation
to the programme corresponding to those of
an editor of a newspaper,

is guilty of a summary offence, and is liable on conviction to a fine
of $5,000.

(6) After a person has been charged with a sexual
offence, no matter likely to lead members of the public to identify
him as the person against whom the accusation has been made
shall be published in a written publication available to the public,
or be broadcast, unless and until he has been convicted or a
direction allowing publication or broadcasting has been made
under subsection (7) or (8).

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(7) If at a preliminary inquiry, or before a trial, or
during a trial, at which a person is charged with a sexual offence
an accused person applies to the magistrate, a judge or the trial
judge for a direction that subsection (6) shall not apply in relation
to him, the magistrate or judge shall so direct unless he is
satisfied that such a direction will prejudice another accused.

(8) If at the trial of a person charged with a sexual
offence the judge is satisfied that the effect of subsection (6) is to
impose a substantial and unreasonable restriction upon the
reporting of the proceedings and that it is in the public interest
that the restriction should be removed, he shall direct that
subsection (6) shall not apply in relation to that person.

(9) If after the commencement of a trial at which a
person is charged with a sexual offence a new trial is ordered, any
direction under this section shall not have effect in respect of the
new trial; and if such a direction is wished a fresh application
shall be made.

(10) For the purposes of this section and sections
327, 328, 329, 329A and 542A, "sexual offence" means any
offence under Part X or this Part, and any attempt to commit
such an offence.

(11) Nothing in this section—

(a) prohibits the publication or broadcasting, in
consequence of an accusation alleging a
sexual offence, of matter consisting only of a
report of legal proceedings other than
proceedings at, or intended to lead to, or on
an appeal arising out of, a trial at which the
accused is charged with that offence; or

(b) affects any prohibition or restriction imposed
by virtue of any other enactment upon a
publication or broadcast.".

Adds new s542A
11 The following section is inserted in the Code immediately after
section 542—

"Measures to protect the complainant etc. in certain
circumstances
542A (1) Where before a special court or at a preliminary
inquiry or a trial an accused is charged with a sexual offence and
the complainant is at the time of the proceedings under the age of
sixteen years, the chairman or the magistrate or the judge, as the

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case may be, may order that the complainant shall testify outside
the court room or behind a screen or other device that would
prevent the complainant from seeing the accused, if the chairman
or magistrate or judge is of opinion that such an arrangement is
necessary for a full and candid account of the acts complained of
to be obtained from the complainant.

(2) A complainant shall not testify outside the court
room pursuant to subsection (1) unless—

(a) arrangements are made for the accused and
the special court or, as the case may be, the
magistrate or the judge and jury to watch the
giving of the complainant's testimony by
means of television or otherwise; and

(b) the accused is permitted to communicate with
his counsel while watching the giving of the
testimony.

(3) Where an accused is charged with a sexual
offence, a judge or a magistrate may make an order directing that
the identity of a witness, or any information that could disclose
the identity of a witness, shall not be published in a written
publication available to the public, or be broadcast.

(4) Where an accused is charged with a sexual
offence—

(a) the prosecutor or a judge or a magistrate shall
at the first reasonable opportunity inform any
witness under the age of sixteen years of his
right to make an application for an order
under subsection (3); and

(b) if an application for an order under subsection
(3) is made by the prosecutor or such a
witness to a judge or a magistrate, the judge
or magistrate shall make an order under that
subsection.

(5) Any person who, without lawful excuse, the proof
of which shall be on him, contravenes an order made under
subsection (3) is guilty of a summary offence, and is liable on
conviction to a fine of $5,000.".

Consequential amendments
12 (1) Consequentially upon the abrogation by section 10 of this
Act of the rules relating to corroboration in sexual offences, subsection (2)
of section 184 and subsection (2) of section 185 are repealed.

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(2) Consequentially upon the repeal by section 10 of this Act of
the statutory offences of rape and indecent assault, section 191 is
amended—

(a) by deleting subsection (4); and

(b) in subsection (5)—

(i) by deleting the words "or section 327 (indecent
assault on a woman or girl)"; and

(ii) by deleting the words "section 180, 181 or 327"
and substituting the words "section 180 or 181".

(3) Consequentially upon the repeal by section 10 of this Act of
the statutory offence of rape, section 196A is amended by deleting from
paragraph (c)(i) the words "a rape" and substituting the words "an offence
under section 323, 324, 325 or 326".

(4) The provisions of the Evidence Act 1905 specified in the first
column of the Schedule to this Act are amended in the manner
respectively specified in the second column of that Schedule.

Commencement and transitional
13 (1) This Act comes into operation on such day as the Premier
may appoint by notice published in the Gazette ("commencement day").
[see BR 21/1993]

(2) Save as provided in the Second Schedule, this Act applies in
relation to offences alleged to have been committed on or after
commencement day, and not in relation to offences alleged to have been
committed before that day.

(3) "Offence" in subsection (2) has the same meaning as it has in
the Code.

FIRST SCHEDULE (Section 12(4))

AMENDMENTS TO THE EVIDENCE ACT 1905

First Column Second Column

Provision Amendment

Second Schedule, Delete the listing relating to sections
Part I: 324 to 329 of the Criminal Code and

substitute the following—

"section 323 (sexual assault)

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section 324 (sexual assault by
person with AIDS, etc.)

section 325 (serious sexual
assault)

section 326 (aggravated sexual
assault)".

Second Schedule, Delete the listing relating to sections
Part II: 324 to 327 of the Criminal Code and

substitute the following—

"section 323 (sexual assault)

section 324 (sexual assault by
person with AIDS, etc.)

section 325 (serious sexual
assault)

section 326 (aggravated sexual
assault)".

Second Schedule, Delete the listing relating to sections
Part III: 328 and 329 of the Criminal Code and

substitute the following—

"section 323 (sexual assault)

section 324 (sexual assault by
person with AIDS, etc.)

section 325 (serious sexual
assault)

section 326 (aggravated sexual
assault)".

SECOND SCHEDULE (Section 13(2))

Where in respect of—

(a) an offence under Part X or XVIII of the Code; or

(b) an attempt to commit such an offence,

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being an offence or an attempt alleged to have been committed before
commencement day, proceedings are commenced or continued on or after
that day, sections 327, 328, 329, 329A, 329C and 542A of the Code, as
introduced into the Code by sections 10 and 11 of this Act, have effect in
relation to those proceedings as if the references in the said sections 327,
328, 329, 329A, 329C and 542A to sexual offences were references to
offences, or, as the case may be, attempts to commit offences, under the
said Part X or XVIII of the Code as in force before commencement day.

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