Is the law on sexual offences indeed biased against women?

Many have suggested that Ghana’s law on sexual offences is biased towards women. This article proposes to test the validity of this suggestion and interrogate the extent to which such perceptions of bias are supported by a rigorous review of the current legal framework. The article isolates and focuses in greater detail on the offence of rape, particularly in light of the fact that the provision on rape has received more judicial attention than other sexual offences.

The law on sexual offences

Chapter Six of the Criminal Offences Act, 1960 (Act 29), as amended by Section 11 of the Criminal Code Amendment Act 1998 (Act 554), covers nine sexual offences: rape; defilement; carnal knowledge of an idiot, imbecile or mental patient; indecent assault; unnatural carnal knowledge; incest; householder permitting defilement of a child; procuration; and seduction or prostitution of a child under 16 years.

Of these nine sexual offences, only rape is drafted in a language which is not gender neutral. Therefore, it may be inaccurate to suggest that the law on sexual offences is biased towards women.

Rape

Rape is defined in Section 98 of Act 29 as having carnal knowledge of a female of not less than sixteen years without her consent. Thus a person can be convicted of rape if the prosecution establishes that the victim is a female aged 16 years or above; the accused had carnal knowledge of the victim; and the carnal knowledge was without the victim’s consent.

It is important to note that lack of consent is crucial to a rape charge. The accused will have a complete defence if he is able to prove that the said rape victim consented to the sex. However, according to Section 14 of Act 29, consent is void if it obtained by deceit or duress; given by reason of a fundamental mistake; 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 sex to which she has purportedly consented.

Carnal knowledge

According to Section 99 of Act 29, carnal knowledge is complete upon proof of the least degree of penetration of the vagina by a penis. In the case of Gligah & Atiso v The Republic, Dotse JSC observed that 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 brushwork, penetration would be deemed to have occurred and carnal knowledge is taken to have been completed.’

A dated law

By our laws, only females can be raped. However, contrary examples exist.

In 2014, Daily Mail reported the story of a man who had gone to a salon in Meshchovsk, Russia, with the intention of robbing it but ended up being a rape victim. The female shop owner, a black belt holder in karate overpowered the would-be robber, and then in a scene reminiscent of Quentin Tarantino's Pulp Fiction, tied him up, stripped him naked and, for the next three days, used him as a sex slave to 'teach him a lesson'—force feeding him viagra to keep the lesson going. Both were arrested by the police. The female shop owner admitted to having sex with her victim a couple of times.

A 2011-2016 data gathered by the Domestic Violence and Victim Support Unit (DOVVSU) of the Ghana Police Service shows that more females continued to suffer from rape and assault with only a handful of the victims being males. Out of 1,862 reported cases of rape, there were only 6 males.

The disproportionate number may be informed by several factors. However, to draft the law on rape to suggest that only females can be victims of rape is dated.

The Equal justice challenge

Article 17 of the 1992 Constitution provides for equality before the law and non-discrimination of persons on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status. Article 35 (5) of the Constitution captured under the Directive Principles of State Policy also provides that the State shall amongst others prohibit discrimination and prejudice on the grounds of place of origin, circumstances of birth, ethnic origin, gender or religion, creed or other beliefs.

In the case of Commissioner of CHRAJ & ORS v Ghana National Fire Service & Attorney-General (2018), Justice Anthony Yeboah observed that “...under international law and our constitutional law, the right to non-discrimination or freedom from discrimination generally and, particularly, on the ground of gender is acknowledged and protected.”

In my view, our law on rape undermines the principle of ‘equality before the law’ as male victims of rape cannot come forward for fear of stigma and a lack of legal recourse. In a society where men are perceived the ‘stronger sex’ and women, the ‘weaker sex’, a man raped in Ghana by a woman - even when evidence exists - may find it difficult to lodge a complaint with law enforcement agencies. Even if such a complaint is lodged, there is no basis in law for the prosecution of a female rapist. Further, the law on rape prescribes no punishment for women who rape men. A law that inherently takes away the right of one gender to have access to equal justice is no good law and should be amended.

Recommendation

Calls have been made for the amendment of the entire Criminal Offences Act, 1960 (Act 29) on the basis that it is dated. I support such calls. In amending the provisions on the offence of rape, we could take a cue from other jurisdictions with commendable practices.

In Kenya for instance, Section 3 of the Sexual Offences Act, No. 3 of 2006, provides for the offence of rape thus:

‘(1) A person commits the offence termed rape if

(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;

(b) the other person does not consent to the penetration; or

(c) the consent is obtained by force or by means of threats or intimidation of any kind.’

In my view, this law is gender neutral, contains all the elements required for a successful prosecution of a rapist (whether male or female) and it is an objective reflection of the situation on the ground. I propose that any amendment of our law on rape should be modelled after this and other best practices.