RAPE AND OTHER SEXUAL OFFENCES IN GHANA

 

 

Whilst sex is a very important part of humanity, it also has calamitous consequences when it happens wrongly. This article is not intended to look at spiritual or medical consequences of sex but rather the legal consequences of sex when not done right in Ghana. So, in effect, I shall be taking you through some offences in Ghana which can be classified as sexual offences.  

 

Rape seems to be the commonest sexual offence known by many people. But even so, there is a very widely accepted wrong impression, that rape is forceful or violent sex with a woman. This article will try to explain what rape really is, and its consequences. It shall also explore some other sexual offences such as Defilement, Carnal Knowledge, Indecent Assault, Unnatural Carnal Knowledge, Incest, Householder permitting Defilement of a child, Procuration, Seduction or Prostitution of a child under sixteen, and Compulsion of Marriage.

 

RAPE

Rape is a very serious offence because, when a person is convicted of rape, the minimum prison sentence by law is 5 years and the maximum is 25 years. Just imagine, that for a 5-minute pleasure, you could spend up to 25 years of your life in prison. Man!!! Be warned.  

 

Rape is NOT the act of FORCING a female to have sex with her. Rape simply means the lady did not consent to having sex with the man. There is no need to prove the element of force in court in order to get an alleged rapist convicted. It is important to clarify this because, most men try to trivialize the question of rape by simply asking some of these questions; Did I physically force her? What shows that I forced her? Are her panties torn? Do you see any scratch on her body? Etc. Whilst some of these may avail the man in the court of public opinion, it may not set him free in a competent court of jurisdiction.

 

Section 98 of the Criminal Offences Act, 1960 (ACT 29) defines rape as “the carnal Knowledge of a female of not less than 16 years without her CONSENT”. Section 99 of the same act puts carnal knowledge as the ‘LEAST DEGREE OF PENETRATION”. So, in effect, the act of rape can be said to be the least penal penetration of an adult female without her consent. Remember it simply said the least degree of penetration without specifying if it is anal penetration or vaginal penetration. That means, either of them can put you in the bracket of rape.  

 

The real issue or question for a judge to answer in a rape case in order to convict a man can be summarized in the following questions.

 

1.      Did she consent to the sex?

2.      what kind of consent did she give?

3.      was the consent still present through the whole time for the sex?

 

Did she consent: If it can be established that it was clear to the woman that she was going to have sex with the man and not any other man, and she agreed to it, then the man can be free. But if the man cannot show that it was clear to the woman and the woman either expressly agreed or by her actions could be deemed to have agreed to the sex, then he might be on his way to jail. Express consent is very much preferred than implied consent since interpretation of actions can sometimes differ from person to person.

 

The Nature of the Consent: If the woman agreed to have sex and gave a condition that the man should use condom, but the man failed to use condom, it is rape. The consent was sex with condom and the moment the condom is absent, the consent becomes invalid since it was for sex with condom. If she agreed to it and said do not ejaculate inside her but the man actually ejaculate inside of the woman, it is also rape. If the woman agrees to open up for a man for medical reasons for example and the doctor takes advantage to rather have sex with her instead of performing the medical procedure only, it is rape. The consent was for a medical procedure and not for sex. In the Australian Case of The Queen Vrs Papadimitropulous (1957) 98 CLR 249, the man took advantage of a Greek speaking woman who did not understand English. He actually went to the start the marriage process with her by taking the forms from the district office and began completing the forms. When they got home, he told the woman that they are married now when in fact he had not taken further steps to ensure the marriage take place. They lived together for some few weeks and had sex and afterwards the man deserted the woman. When the woman discovered that the forms, they took from the office did not mean they had been married, she prosecuted the man for rape. The court held that since the woman’s consent was premised on the false believe that she was married to the man at the time of the sex, that was an invalid consent and therefore the man was guilty of rape.

 

Was the consent present throughout: If the woman agrees to the sex but whiles the man is in the process, she decides she has changed her mind, the man ought to stop immediately he is told by the woman to stop. The continuation after the time the woman withdraws the consent, amounts to rape. The Case of Kaitamaki V. R [1984] 3 WLR 137 illustrates this clearly. Appellant discovered after penetration that the woman was no longer consenting. He however did not desist from the intercourse. He was held to have raped her. The court stated that “sexual intercourse is a continuing act which ends only in withdrawal”. In not desisting after the consent had been withdraw, therefore, the appellant had been properly convicted of rape.  

 

Until Recently when the Supreme Court Decided in the case of Martin Kpebu VRS the Attorney General that all offences are bailable, rape and defilement were not bailable offences under Section 96(7) of the Criminal Procedure Act, 1960 (ACT 30). A mere accusation by a woman that you have raped her or defiled her would see you in custody until the case had finally gone through full trial to determine your guilt or innocence.

 

DEFILEMENT

In terms of severity of punishment, defilement is even more serious than rape. Here too, remember that it has got nothing to do with forcing the girl or not. The law on defilement simply is that a man has had sexual intercourse with a child who is less than 16 years. That law says that a child who is less than 16 does not have the capacity to give consent for sex. So, it does not matter even if it was the girl who forced the man to have sex with her. So long as she is less than 16 years, the man ought to run away even if she is the one insisting.

 

And take note, the age of capacity to commit crime in Ghana is 12 years. So, any male who is 12 years and above can technically be convicted for defiling a girl who is 15 years.

 

It is also important to however add that defilement is not only in relation to girls. It is simply in relation to a child. So, if another man has carnal knowledge of a boy who is less than 16 years of age, it is also defilement. The only ingredient here is that there was carnal knowledge and it was with a child less than 16 years of age.

 

 

CARNAL KNOWLEDGE

This might sound a little confusing. We have used carnal knowledge above to refer to the act of sex or the penal penetration of either the anus or the vagina.  However, there is also a Specific crime known as Canal Knowledge under Section 102 of the Criminal Offences Act. This refers to a situation where a person takes advantage of a mentally deranged person and have sex with them. Since the mental patients, imbecile or idiot has no mental ability to give consent to the sex, it makes it a crime and upon conviction the accused get the same sentence as a rape convict would get.

 

 

INDECENT ASSAULT

Indecent assault basically refers to a situation where the accused forcibly makes sexual body contact with another person. This body contact is not necessarily an actual sexual intercourse but it is one that is indecent. For Example, if a man forcibly touches the breast or other sexually sensitive parts of a woman without her consent, it amounts to indecent assault. Again, if a housemaster for example, decides to go shave pubic hairs for students, it would amount to indecent assault. If a pastor convinces the women in the church the he has to bath them in order to purify them, he can be charged with indecent assault. The law is that upon conviction, the convict could be sentenced to a minimum of 6 months in prison.

 

UNNATURAL CARNAL KNOWLEDGE

Section 104 of Act 29 makes this an offence and its punishment same as a rape convict would be punished. Unnatural Carnal Knowledge here has been defined as either having sex with an animal or having sex in a manner that is not natural. Anal sex, whether with a man or a woman can be deemed unnatural carnal knowledge and if found the offender will be punished with a prison term. Many of the anti LGBTQ+ activists in Ghana have argued that this law should be applied fully by the Police and the Attorney General. But the question is how would they be able to find evidence for the police to be able to successfully prosecute offenders in this regard without breaching the privacy of the individual which is protected by the constitution. 

 

 

INCEST

The law on incest prevents the following persons from having sexual intercourse. Grandparents and their grandchildren. Parents and their children, Brothers and Sisters (Siblings). Persons who violate this can be imprisoned for a minimum of 3 years and a maximum of 25 years. In the Ghanaian Case of GLAH AND ANOTHER VRS THE REPUBLIC [1992] 2 GLR 15, the Ho District Court convicted and imprisoned the appellants for incest. Mr. Glah admitted to having an affair with his Wife’s mother and his wife’s Sister. In fact, he had lived with the wife, the wife’s mother and the wife’s sister for 17 years and had 2 children with each of the three women. But on appeal, the conviction and the sentence were all reversed. The reason is that Section 105 of the Criminal Offences Act has clearly defined incest to include sex between or amongst the following persons: Grandparents - grand Children, Parents – Children, brothers – Sisters (siblings). It did not include a wife’s mother and a wife’s sister; therefore Mr. Glah and her mother-in-law and sister-in-law had not committed any offence under any existing law.

 

HOUSEHOLDER PERMITTING DEFILEMENT OF A CHILD

This offence is found in Section 106 of the Criminal offence Act. It places responsibility on owners, managers and officers of premises such as hotels, guest houses and Inns to ensure that children below the age of 16 are not brought there to have sex. Therefore, if it is found that a child has gone into the premise to have sex, the owners, manages, or officers in charge who permitted the act will also be charged together with the person who committed the defilement and if found guilty, they will all get the same prison sentence for defilement. The premises owners can defend themselves by showing that it was clear the child looked more than 16 or by showing that they asked for an ID card and the ID card showed the child was more than 16.

 

PROCURATION AND OTHERS

Procuration basically deals with recruiting people to become prostitutes. If you are found to have induced or recruited people into prostitution, this is also a sexual crime that can land you in jail for up to 2 years.

 

A person who also seduces a child of less than 16 years into prostitution or indecent assault or actual sexual intercourse with another also commits a misdemeanor and could be in jail.

 

 

Finally, Compulsion of marriage refers to the act of forcing someone to marry against their own will. This is also a crime that can lead one to jail.

 

 

CONCLUSION

There are rules that regulate sexual activities in Ghana. In order to avoid getting into trouble, do the right thing at all times so the Police will not have to come after you.

 

 

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Thank you for reading.

 

 

RICHARD AMARH ESQ

B.A (African Studies)

Bachelor of Laws (LLB)

Barrister at Law - Ghana