Beyond the common sexual offenses such as rape, defilement and incest, the law further seeks to cause a restraint on persons from perpetrating other forms of sexually violating acts on other persons. Sexual assault in themselves although very prevalent (recording about 77%)[i] are barely brought to the light due to several factors including a lack of knowledge about them. It’s worse when it comes to sexual harassment.
Research has shown as far back as 1993 and earlier that sexual harassment include a wide range of acts such as the display of sexually charged or demeaning jokes, derogatory names or epithets, repeated comments on physical appearance in a sexual manner and even sexually charged body languages and facial expressions.[ii] Some others include being exposed to obscene attitudes by others, being exposed to the sexual organs and nakedness of others without the consent of the victim. A more contemporary form is being exposed to sexually charged messages and comments from unwarranted persons on social media platforms such as Facebook, Whatsapp, Instagram etc.
In a study conducted to ascertain how individuals have been subjected to various forms of sexual harassment, it was found that with regards to the use of sexually offensive words, 29% males and 71% females had been victims. With comments on physical appearance, 53% males and 47% females had been victims. With dirty jokes 56% males and 44% female victims were found. Regarding sexual jokes via emails also, 18% of males and 82% of females had experienced that. Lastly, with being exposed to the private parts of the perpetrators, 53% of males and 47% of females had experienced that.[iii]
It then becomes necessary to enquire whether there are in laws in Ghana to address such issues.
THE CURRENT POSITION OF THE LAW ON SEXUAL HARRASMENT
Within our criminal law, the criminal version of sexual harassment is the offense of indecent assault.
An indecent assault by itself includes all forms of sexual acts which do not involve penile penetration and occurs without the consent of the other party. This then includes acts of kissing, fondling of the body, and in general making sexual touches of another person without the consent of that other person.
Under the Ghanaian criminal law, a person commits the offense of indecent assault where the person without obtaining the consent of the other person, forcibly makes a sexual bodily contact with that person or sexually violates the body of that other person in such a manner which does not amount to carnal or unnatural carnal knowledge.[iv] This provision essentially means that one is guilty of the offense of indecent assault where a person make a form of contact with another person in a sexual way (of which does not include the penetration of the penis) and the consent of the other party isn’t obtained. By way of illustration, if a lady moves up to a gentleman and kisses him without the consent of the gentleman, that act may amount to an indecent assault. Again, if a gentleman intentionally fondles the breast of a lady without her consent, an offense of indecent assault may lie. Thus in a case like Alawusa v. Odusote[v] where the husband forcibly shaved the pubic hair of his wife, that would have amounted to an indecent assault but for the exception at that time in the law which shielded married couples. The court however was in agreement that the act would have ordinarily constituted an indecent assault but for the reason of marriage.
The definition of an indecent assault under the criminal act makes specific emphasis on bodily contact such that for the offense to have been committed the two parties must have had a bodily contact. Anything short of that, though might be sexual in its nature will not qualify as an indecent assault under the criminal regime.
Under the Labor Act, sexual harassment is defined broadly to mean any unwelcome, offensive or importunate sexual advances or request made by an employer or superior officer or a co-worker to a worker, whether the worker is a man or woman.[vi] This definition goes beyond the requirement of a bodily contact by the use of broad terms. This definition may therefore include the use of sexual words on another person without his/her consent. Nonetheless the definition sexual harassment under the labor act is only restricted to employment relations and has no criminal consequences.
Lastly sexual harassment is referred to under the Domestic Violence Act, however what amounts to sexual harassment is not defined. The domestic violence act is also only limited to domestic relations such as a family relationship or a communal relationship.
THE SHORTCOMINGS ON THE LAW ON SEXUAL HARASSMENT
As expressed above, the criminal law on sexual harassment in the form of indecent assault is limited to bodily contact between the parties such that when the accused cannot prove any bodys contact with the perpetrator, the perpetrator may not be guilty of an indecent assault. The statistics as posited above however have shown that today many of the current trends of sexual harassment are of a non-bodily nature. Daily in the inboxes of people, sexually charged messages and images are sent to them with the perpetrators not heeding to reprimand. Daily, people receive sexually unappealing comments about their bodies which are not reprimanded. These ensue in schools, workplaces, on social media and many other places.
The requirement of an indecent assault under our law focusing solely on bodily contact, in the view of the author is outmoded and not in touch with current trends. The harm caused by sexually violating the body of another person is same as violating the integrity and dignity of the person by the use of sexual words, images and gestures. For instance, when a man exposes his genitalia to a women inviting her to touch it, although there wouldn’t have been a bodily touch by that act, such an act is a violation of her integrity and dignity of which the criminal law must be extended to address same.
There is therefore a need for the lawmakers to consider revising the offense of indecent assault to move from the requirement of a bodily contact only and to extend it to include and capture such modern trends of sexual harassment as discussed above.
[ii] Fitzgerald, L.F. (1993). “Sexual Harassment, Violence against Women in the Workplace”. American Psychologist, 48, 1070-1076.
[iii] Ganu J & Boateng P, Examining Sexual Harassment Experiences in the Ghanaian Work Environment: Behavioural Responses and Effects on both Women and Men, available at https://www.researchgate.net/publication/299483470_Examining_Sexual_Harassment_Experiences_in_the_Ghanaian_Work_Environment_Behavioural_Responses_and_Effects_on_both_Women_and_Men/related
[iv] Section 103 of the Criminal Offenses Act, 1960, Act 29.
[v] 7 W.A.C.A pg 140
[vi] Section 175 of the Labour Act, 2003 (Act 651)
Kweku Attakora Dwomoh.
Associate at Law Plus (Attorneys-at-Law).
Source: Kweku Attakora Dwomoh