In Ghana currently, statistics on rape is on the increase. In a domestic violence report of 2016, about 10.3% of women between the ages of 15-19 are physically forced to have sex in their life time. The percentage increases to 11.8% for women between the ages of 20-24. Another 14% is recorded for women between the ages of 25-29%. It gets surprising to know that even women between 50-60 years have about 3.2% of them being forced physically to have sex. Aside physically being forced to have sex, the statistics proved that others means are employed by the perpetrators which does not involve the use of force, but the consent of the women are not obtained. The statistics get alarming when men become the victims. It revealed that about 9.9% of men between the ages of 20-24 are forcibly made to have sex and a shocking 5.6% of men above 50 years are forced physically into having sex. On the whole, about 30% of women and 23.1% of men experience sexual violence at least once in their life time.
Worse yet, persons who were subjected to these forms of violence are unable to report to the rightful authorities. As of 2011 for instance, reports by the Ghana police service indicated that the number of rape incidents reported at their outfit had been reduced by about 53%. Some reasons proffered may include the fear placed in the victims by the perpetrators, or the closeness in relationship with them. Perhaps some others refrain from reporting because of the lack of knowledge of the nature of the act, i.e. on what exactly the law says on sexual violence and what exactly that means.
This piece seeks to explain one of the common forms of sexual violence which is rape and what exactly the law is on it.
THE LEGAL INGREDIENTS OF RAPE
Ordinarily, when the word rape is used, there is a connotation of the use of violence. However, within the confines of the Ghanaian law, what amounts to rape is quite different. Rape is defined at section 98 of the Criminal Offenses Act, 1960, Act 29 as “the carnal knowledge of a female of sixteen years or above without her consent.” By this definition, for a person to have been raped in Ghana then, four things must have ensued. First, there must be carnal knowledge. Secondly the victim must be a female. Thirdly, the female must be sixteen years or above and lastly, the carnal knowledge must be without her consent. When these four cannot be established by the prosecution as having ensued, the perpetrator of the act won’t be guilty of rape. The ingredients are discussed thoroughly below-
There must be carnal knowledge. By way of definition, carnal knowledge is sexual intercourse between a male and female in which there is a degree of penetration of the woman’s vagina by the man’s penis. The concept of carnal knowledge at common law is organ specific and gender specific such that there must be the penetration of the vagina of a female by the penis of a man. Thus, if the man inserts his finger into the vagina of the woman that cannot amount to a case of carnal knowledge. In the same vein, when a man inserts his penis anywhere else in the body of the woman aside the vagina, that cannot amount to an instance of carnal knowledge. Again, because it is organ specific, i.e. the penetration of the penis into the vagina, a female cannot carnally know another person. The idea behind it is that at common law, the vagina cannot “penetrate” as opposed to the penis and as such a female cannot “carnally know” another person. The implication of this is that females cannot be guilty of rape under our Ghanaian law. Furthermore, for carnal knowledge to ensue, it’s enough if the man made the least penetration possible. The least penetration possible is differentiated from a mere brush work. A mere brush work may not amount to carnal knowledge however when the man inserts his penis albeit so small past the vaginal lips, he will be guilty of carnal knowledge. It thus won’t lie in the mouth of a man to say, the whole shaft didn’t penetrate the vagina and as such he isn’t liable. In the same vein, the emission of semen is not a requirement to rape. The fact that the man did not emit semen doesn’t mean that he cannot be liable for carnal knowledge and by extension for rape. Lastly the time of penetrating does not matter. The penetration of the vagina by the penis will still amount to carnal knowledge no matter how short a period of time it takes.
Secondly, the victim must be female. Flowing from the concept of the carnal knowledge, it’s only a female that can be a victim of rape under our laws. This is because only “females” possess a vagina. A careful note is made of transgenders however it is argued that where a man perhaps changes his sex to a female by the surgical means of obtaining a vagina, that “man” at that point in time has become a “woman” and as such will be treated as a female for the purposes of the law on rape in case another man inserts his penis in the vagina without “her” consent. In effect, if a man inserts his penis into the anus of another man, albeit without his consent, that man cannot be guilty of rape under our laws because the victim wasn’t a female.
Thirdly, the female must be sixteen years or above. Our laws peg the age for sexual majority at 16 years. In effect, a person can consent to having sex only when the person is sixteen years or above. Any person under the age of sixteen is deemed as being unable to consent to sex and as such commits an offense anytime he/she engages in sex. Thus, if a man engages in sex with a lady of 14 years, even if there is evidence to the effect that the lady invited the man to have sex with her, the man will still be guilty of an offense- perhaps the offense of defilement depending on the circumstances of the case. However for the offense of rape to lie, the female must be 16 years or above. Any age below 16 years may make the accused liable for a different offense but not rape.
Lastly, the carnal knowledge must be without the consent of the female. This is perhaps the most controversial aspect of the offense of rape and perhaps the thorny one to establish. The law again distinguishes between consent and a mere submission. The fact that a woman submitted to the act of penetration by the man does not necessarily mean that she consented. Some defense attorneys have sometimes argued that when the woman does not resist the man forcibly, she must be deemed to have consented. That may not necessarily be so. Section 14 of the criminal offenses act, 1960, Act 29 explains in detail what amounts to consent. Precisely, when a person procures the consent of another person through deceit or fraud, that amounts to no consent at all and even though the other person might have consented to the fraud or deceit, there has been no consent in law at all. The overarching question in the circumstance becomes, “would the victim have agreed to the sexual intercourse if the real facts had been known to her?” If the answer is in the negative then, the victim did not consent in law to the act. Thus in the case of R v. Williams where the accused who was a choir master informed the victim that he had to insert his penis into her vagina so as to open her air passages to improve her singing of which she seemingly agreed, the court held that there had been no consent at all since she had been deceived. Again, if the consent is obtained through duress that is still no consent in law. When the consent is also procured when the female has been incapacitated e.g. when intoxicated, that consent cannot qualify as a consent in law. By what amounts to consent in law, it is realised that the mere lack of consent renders an otherwise valid sexual intercourse, unlawful. This is extended in the matrimonial home and that introduced the concept of marital rape under our laws. Hitherto, an exception was created under section 42(g) of Act 29 where for married couples an everlasting implied consent was presumed. That aspect of the law has been repealed and as such the normal rules of consent applies to married couples.
By the exposition on the law on rape in Ghana, it is made clear that a person cannot be guilty for raping a man no matter what sexual act is engaged in. it is also clear that to rape a person does not mean the sexual act was engaged in violently. The mere act of engaging in carnal knowledge without the consent in law of the female who is sixteen years or above amounts to rape. Within some jurisdictions, amendments have been made to their laws to make rape gender neutral and organ neutral, i.e. to make it possible for a man to be raped or a woman to be raped and for a man to rape as well as a woman to rape. Having in view the alarming statistics of physical sexual activities being perpetrated on men in Ghana, it makes it desirable for the law makers to consider revising the laws on rape to make it gender neutral and organ neutral.
Lastly, rape is a first degree felony and a person guilty of it shall be liable for a jail term of not more than twenty-five years. Any female who realises that those as discussed above have ensued, must not hesitate at all to report to the police for the perpetrator to be brought to book.
Author-Kweku Attakora Dwomoh ( firstname.lastname@example.org)