SEXUAL OFFENCES
These are offences covering all acts with sexual connotations, which are either without the consent of the other party, or with the consent of the other party but considered inimical to public health or public morality, engaged in for pleasure, gratification or to obtain a commercial benefit. These include: rape, defilement, sodomy, bestiality, incest, pimping etc.
RAPE
In Ghana the offence of rape is a first degree felony carrying a sentence of not less than five years and not more than twenty-five years – Section 97
By section 98, “rape is the carnal knowledge of a female of sixteen years or above without her consent. The victim of rape can only be a female who is 16 years or above. Then again, a man cannot be the victim of rape – indeed, a man cannot even be raped by another man. And a woman cannot be the perpetrator of rape – this a function of the legal definition of rape in terms of the insistence on carnal knowledge – this formulation excludes women perpetrators since a woman does not have the natural ability penetrate an orifice with her genitalia. On another score, carnal knowledge in the definition of rape speaks of penile penetration per vaginam – that is, through or by way of the vagina. Any other mode of penile penetration does not amount to rape.
QUEEN v PAPADIMITROPULOUS, R v LINEKAR
R v FLATTERY
The accused had sexual intercourse with the complainant under the pretense of administering medical treatment for bout of fits. Held: that the action of the accused amount to rape since what he did was substantially different from what the victim consented to. She consented to being treated medically and not to the accused having sexual intercourse with her.
KAITAMAKI v R,
The accused had sexual intercourse with woman. During the intercourse he noticed that the lady was longer consenting however he persisted. Held: on appeal he dismissing the appeal the court held speaking through lord scarman that the act of sexual intercourse is a continuing act which ends only in withdrawal. At the moment that she withdrew the consent the rest of the sex was rape.
The requirement of penetration is merely an enquiry as to whether any part of the penis went past the lips of the vagina – so even if only the small tip of the penis entered the vagina, the accused would still be guilty of rape. Article 99.
The Supreme Court, per Dotse JSC defined carnal knowledge in GLIGA & ATISO v THE REPUBLIC in the following words, “Carnal knowledge is the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brush work, penetration would be deemed to have occurred and carnal knowledge taken to have been completed.”
Also, the requirement of penetration is not an enquiry as to whether the man ejaculated and as such, it does not lie in the mouth of the accused to assert that he is not guilty of rape because he did not emit semen. R v MARSDEN
The most important element on rape charge is the lack of consent. A charge of rape cannot succeed if the accused is able to show that the woman consented to the sexual connection – that is to say, consent is a complete defence to a charge of rape. Consent is a complete defense to a charge of rape – so the prosecution must prove absence of consent on the part of the female alleged to have been ravished. It is difficult to distinguish consent from mere submission.
So for instance, when the complainant was asked in a recent English case, Barbour v. HMA, whether she consented, she replied: “It depends what you mean by consent.”
Under Ghanaian law, consent is void if it is obtained by means of deceit or of duress and it is obtained by deceit or duress if it would have been refused but for the deceit of duress – Section 14(b) and 14(f) respectively.
R v OLUGBOJA
The accused offered to take the victims to their residence but rather took her to his residence. He and his friend had sexual intercourse with them without them consenting despite they not using force or threat. Held: that, since the amendment of section 1 of the Sexual Offences Act 1956 by section 1 of the Sexual Offences (Amendment) Act 1976, the offence of rape was having sexual intercourse against the woman’s consent; that the offence was not limited to cases where sexual intercourse had taken place as a result of force, fear or fraud and, therefore, the judge had properly directed the jury and left to them the question whether the complainant had consented to having sexual intercourse with the defendant. Although “consent” is a common word it covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other. The issue of consent should not be left to the jury without some further direction. What the direction should be will depend on the circumstances of each case
Then again, consent is void if the victim was under a permanent or temporal incapacity resulting from intoxication or any other cause, as to render her incapable of understanding the nature or consequences of the sexual intercourse to which she has purportedly consented – Section 14(a). R v CAMPLIN
It is also rape if the accused knows the victim is asleep and therefore does not resist because she is, in that condition, incapable of resisting. R v YOUNG. It is immaterial that the accused applied force as was held in Olugboja.
A person who has given her consent may also revoke it – Section 42(g). Therefore, though sexual intercourse is complete upon penetration, yet it is a continuing act ending only in withdrawal – therefore, the accused is guilty of rape if he remains in the woman after she has stopped consenting.
R v KAITAMAKI
The appellant broke into and entered a house and had sexual intercourse with a young woman twice. He claimed that as to the second sexual bout, it was after he penetrated the woman that he became aware that she was not consenting. However, he proceeded with the intercourse anyway. It was argued by the defence that by the criminal law of New Zealand, if a man penetrates a woman with her consent, he cannot be guilty of rape by continuing the intercourse after a stage when he realizes that she is no longer consenting. HELD: It was held that sexual intercourse is a continuing act which only ends in withdrawal. Thus, the conviction of the appellant was well founded.
MARITAL RAPE
On the issue of marital rape, in the early Common Law, a husband was held not to be guilty of rape because there os mutual matrimonial consent and contract and the wife cannot retract in such a contract.
This view was deemed to be highly chauvinistic. However, with time, this view was reversed and certain exceptions were given in R v Clarence. In that case, the accused was charged with the rape of his wife at a time when a separation order, made by justices on the ground of persistent cruelty, was in force. The order contained a clause that the wife was no longer obliged to cohabit with her husband. The order amounted to a judicial separation, which could only be discharged if the wife committed adultery or if she voluntarily resumed cohabitation with her husband. In this case, the wife had not resumed cohabitation. It was held that in the circumstances her consent to marital intercourse was revoked and the husband was not entitled to have intercourse with her without her consent.
The Common Law courts once again revisited the issue in R v MILLAR. In that case, the wife left the husband and filed a petition for divorce on the ground of adultery. Subsequently, he met his wife and had intercourse with her against her will. The defence contended that since the woman was the prisoner’s wife, he could not be guilty of rape since the consent had not been retracted by a court. Lynskey J. held that in the circumstances the man was not guilty of rape since a petition of divorce brought before a court is not the same as a court order of separation.
Previously under the Ghana law, section 42(g) followed the Common Law reasoning that a man cannot be guilty of marital rape unless the marriage has been annulled. However, after our law reform, this view has been dropped and provides by Section 42(g) that a man can nevertheless be guilty of raping his wife whilst the marriage is subsisting and the woman refuses consent.
DEFILEMENT
The offence of defilement is known in some jurisdictions as statutory rape. The offence of defilement is governed by section 101 of Act 29. Section 101(1) defines defilement as the natural or unnatural carnal knowledge of a child under sixteen years. Section 101(2) explains that the offence is committed even if the child consented to the sexual act.
The aim of the legislature is to discourage sexual intercourse, be it natural or unnatural, with children under the age of sixteen years even if they give their consent to the act. The offence is also gender neutral by the use of a child. However, there seem to be a problem with the retention of the formulation of carnal or unnatural carnal knowledge a woman does not have the ability to carnally know a person whether naturally or unnaturally since the female organ cannot penetrate an orifice. R v MASON.
On a charge of defilement, the most important consideration is the age of the victim – he or she must be under sixteen years of age – so if the victim is sixteen years or more, the accused cannot be charged with defilement. Therefore, if the victim, being female, is sixteen years or more, the proper charge to prefer against the accused is rape, if the sexual connexion was without her consent.
On the other hand, if the victim, being male, is sixteen years or more, and the accused is male, the proper charge to prefer against the accused is unnatural carnal knowledge simpliciter.
Defilement arises in one of two circumstances, namely:
⦁ where the act is done without the consent of the victim in circumstances which will amount to rape if the victim were sixteen years or more, and
⦁ where the act is done with the consent of the victim.
As such, consent is irrelevant in defilement. All that the prosecution need to prove is that the victim was under sixteen years when the accused carnally knew him or her or unnaturally carnally knew him or her. YEBOAH v THE REPUBLIC, COP v SEM
There has been an issue of whether defilement is a strict liability offence and whether the accused can plead mistake or ignorance of fact as to the age of the victim. It seem so because section 29(1) provides that, a person shall not be punished for an act which, by reason of ignorance or mistake of fact in good faith, that person believes to be lawful.
CARNAL KNOWLEDGE OF AN IDIOT OR IMBECILE OR MENTAL PATIENT
The law seeks to protect persons of subnormal intelligence from sexual acts whether or not they consent to such acts. A mentally handicapped person is deemed a minor during the continuance of that condition – therefore, he/she cannot give valid consent to sexual acts by section 14(a).
By sec 102, a person commits an offence if he/she has a sexual connection with an idiot, imbecile or lunatic – who is in or under the care of a mental hospital (what if the person is not in the hospital).
The mens rea requirement is important
⦁ it must be shown that the accused knew at the time of sexual intercourse that the victim had a mental incapacity
The age of the victim is immaterial. R v PRESSY
UNNATURAL CARNAL KNOWLEDGE
At common law, the issue of sodomy was treated as a taboo subject. In line with this notions under English law, Ghanaian law takes the view that heterosexual life is the normal thing for human beings. Therefore, any other formula is cast by the law as unnatural – hence section 104(2) provides that: Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or, with an animal.
Kissi provides that the definition under section 104 suggests that sodomy is unnatural
That is, sex per anum is unnatural – or what is variously termed, coitus in anum – hitch to the wrong side of the post – sink the brown – or usher of the back door.
Then also, bestiality i.e. carnally knowing an animal or permitting an animal to carnally know one is unnatural, hence criminal.
A person is guilty of unnatural carnal knowledge in one of three ways, namely
⦁ having unnatural carnal knowledge with a person of sixteen years or above without his or her consent – because of the lack of consent, this instance is equated to rape – hence it is a first degree felony and the accused is liable to suffer imprisonment of not less than five years and not more than twenty-five years – 104(1)(a);
⦁ Or, having unnatural carnal knowledge with a person of sixteen years or more with his or her consent – this instance is a misdemeanor because of the existence of the other person’s consent – section 104(1)(b);
⦁ Or, having sexual intercourse with an animal – this instance is a misdemeanor – sec 104(1)(c).
However, lesbianism is not a crime because it does not involve penile penetration – as we have said, a woman does not have the natural ability to penetrate an orifice with her genitals.
INDECENT ASSUALT
Indecent assault is a misdemeanor punishable by a term of imprisonment of not less than six months – Section 103(1).Indecent assault involves all acts of sexual assault not involving penile penetration, whether natural or unnatural. These include: oral sex?, digital sex, facial, pearl necklace (ejaculating semen on or near the neck), teabagging (placing one’s testicles in the mouth or on or around the face of another in a repeated in-out-in-out motion), breast fondling, buttocks fondling e.t.c.
A person may be guilty of indecent assault in one of two situations, namely:
⦁ forcibly making a sexual bodily contact with the other person in a manner that does not amount to carnal or unnatural carnal knowledge without the person’s consent – this situation of culpability stresses the element of force – in most cases, the absence of consent suggests a forcible touching – sec103(2)(a)
⦁ Or, sexually violating the body of the other person in a manner not amounting to carnal or unnatural carnal knowledge without the person’s consent – sec 103(2)(b)
ALAWUSA v OSUDOTE: NB: this case was decided under the old regime that set store that a man could not be charged for raping his wife – yet we have seen that this situation has now changed and it is possible for a man to be convicted of raping his wife – so the ratio in Alawusa may not hold sway today
R v ROGERS, R v SARGEANT
INCEST
Incest is sexual intercourse between close family members. It is mostly a victimless act and goes unreported. In Ghana, the law does not prohibit sexual relations between persons who are related only by affinity, and but by blood ties, thus, the law does not prohibit sexual relations between fathers and step-daughters or between mothers and step-sons or between step-siblings.
Incest is governed by Section 105. By section 105,
⦁ it is incest, if being a male of not less than sixteen years, you have carnal knowledge of your granddaughter, daughter, sister, half-sister, mother or grandmother
⦁ It is incest if, being a male of not less than sixteen years of age, you permit your grandmother, mother, sister, half-sister or daughter to have carnal knowledge of you
⦁ It is also incest if, being a female of not less than sixteen years, you have carnal knowledge of your grandson, son, brother, half-brother, father or grandfather
⦁ Then, it is incest if, being a female of not less than sixteen years, you permit your grandfather, father, brother, half-brother or son to have carnal knowledge of you
It is very important to note that for an accused to be guilty of the offence of incest, he or she must know that the other party to the sexual connexion was within the prohibited degrees of consanguinity – if the prosecution does not prove that the accused knew this as a fact, he or she is entitled to an acquittal. R v CARMICHEAL
It is immaterial that the relationship between the accused and the other person is not traced through lawful wedlock – even in this case, the accused will still be culpable. Section 105(5)
PROCURATION
This offence is ordinarily referred to as pimping. A pimp is a person who finds and manages clients for prostitutes and engages them in prostitution in order to profit from their earnings. The criminal law seeks to prohibit pimping under the offence of procuration.
It is governed by Section 107.
R v. de Munck :.
R v DRURY
The accused cannot be convicted of the offence of procuration on the evidence of only one witness – there must be corroboration in a material particular of that witness’ testimony by evidence that implicates the accused – Section 107(2).
Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the accused with the crime – Section 7(1) of the Evidence Act, 1975 (NRCD 323).
Section 108 deals with Seduction or Prostitution of a child under sixteen.