PREPARING THE OFFENDER’S BED; THE OFFENCE OF ATTEMPTED RAPE by Comfort Agyeman-Duah

In the case of RICHARD BANOUSIN V THE REPUBLIC ( J3 2 of 2014) [2014] GHSSC 10 (18 March 2014) the supreme court expressed itself thus:

This conclusion by the Court of Appeal is indeed very surprising in view of the fact that, learned Chief State Attorney, had invited the Court of Appeal to consider applying section 159 (1) of Act 30, which provides as follows:

Where a person is charged with rape, unnatural carnal knowledge or defilement and the original charge is not proved, that person maybe convicted of the lesser offence of indecent assault although not charged with that offence.”

“The Court of Appeal concluded that since there was no evidence of actual carnal knowledge, there was evidence pointing to intention to rape because the accused attempted to rape the victim but was resisted. Accordingly, he was convicted of attempted rape pursuant to section 153 of the Criminal Procedure Act, 1960, (Act 30) which provides that when a person is charged with an offence, he may be convicted of having attempted to commit that offence although the attempt is not separately charged.”

The question that follows the above quote is :

Why not attempted rape? Is there no belief that a supposed indecent assault could be a case of attempted rape?

In the case of RICHARD BANOUSIN V THE REPUBLIC ( J3 2 of 2014) [2014] GHSSC 10 (18 March 2014), the accused was charged and convicted  of raping the victim,  his student. However, on appeal, the Court of Appeal convicted the accused of attempted rape under section 153 of the Criminal Procedure Act  1960 (Act 30) on the basis that there was no actual carnal knowledge of the victim. On further appeal to the Supreme Court, they found some discrepancies in the prosecution’s case and quashed the conviction of the court of appeal. The court speaking through Justice Dotse did mention that the prosecution was not brutally frank with the evidence on the aspect of carnal knowledge of the victim. It was in this judgement that the above quote was made. 

A nation that awaits tragedy before action fails in the moment of wait. Before laws were made the authors of it had a mental picture of possibilities and arranged alphabets here and there in that regard. They thought: it is possible that a person would kill another. What should be done to such a person? What factors should be considered in convicting the person for this offence? Is this even an offence at all? Then, a document is cooked up. It is not prudent to wait for an act which has great consequences on society to occur before provisions and policies are drawn to regulate it. It is in fact dangerous. Thus the law does not wait for the wrongful act to be carried out before it lays it’s hand on an offender. For this reason, it sets out to arrest the person who even conceives the idea of doing a wrongful act in mind. We understand liability in criminal law is not only imposed on the those who carry out the substantive act but also on those who in any form or way lend a helping hand to them. This is because by doing so, they have empowered the substantive offenders to carry out an act that they would have otherwise not carried out but for the help received. In this vein conspiracy, attempt, abetment, inter alia, have been made offences against the state. 

This article is going to breakdown the offence of attempt, then narrow it down to attempted rape and finally highlight the possible instances that can be described as actus reus for attempted rape

​According to the esteemed Justice of the Supreme Court, Professor Henrietta Mensa Bonsu in her book, The General Part of Criminal Law VOL II, there are two facets when it comes to the offence of attempt. It does not only deal with the orthodox requirement where there is a failure to complete the actus reus(physical act) but there are also instances where the offender carries out the actus reus successfully but fails to achieve the intended or desired result. The author agrees with her because there have been instances such as in the case of R V SHIPVURI[1987] AC 1 where the accused under the belief that he was importing illegal drugs , imported a powdered substance which was in fact harmless. He was still convicted. This shows that the substantive act can be carried out successfully, but the desired results would not be attained. The mens rea for attempt is the same for the substantive act. However, the actus reus may vary. The offence of attempt is stipulated in section 18 of the Criminal and Other Offences Act 1960 (Act 29): 

“18(1)

A person who attempts to commit a crime by any means shall not be acquitted on the ground that, by reason of the imperfection or other condition of the means, or by reason of the circumstances under which they are used, or by reason of any circumstances affecting the person against whom, or the thing in respect of which, the crime is intended to be committed, or by reason of the absence of that person or thing, the crime could not be committed according to his intent.”

It must be noted that a person who attempts to commit a criminal offence is punished as though he has actually committed the offence. Thus, if A attempts to kill B, A will be punished as if he actually murdered B.

​Rape on the other hand is a substantive offence. Simply put rape is having carnal knowledge of a female who is at least 16 years without her consent. Under the Ghanaian law, a person below the age of 16 cannot consent to sex and thus even with consent from such a person, the accused would be liable for defilement. Rape as an offence is in section 97 and 98 of Act 29 which states as follows:

97. A person who commits rape commits a first degree felony and is liable on conviction to a term of imprisonment of not less than five years and not more than 25 years.

98. Rape is the carnal knowledge of a female not less than 16 years without her consent.

The elements of this offence are consent which is very intrinsic to conviction of this crime and proof of penetration as this buttresses evidence of carnal knowledge in section 99 of Act 29 which reads: 

99. Where on the trial of a person for a criminal offence punishable under this Act, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or unnatural carnal knowledge is complete on proof of the least degree of penetration.

So, in GLIGAH &ATISO V THE REPUBLIC [2010] SCGLR 870 , where two police men were accused of rape, it was stated that it was irrelevant how deep or little the penetration was, so far as it was beyond a brush work, carnal knowledge had been realized.

From section 97, supra, a person who commits rape gets a minimum of 5 years in prison and 25 years maximum. Early on we learnt that a person who attempts to commit an offence is punished as though he has committed the offence.

From what has been said so far, we can conclude that a person who commits attempted rape is liable to a sentence of at least 5 years and at most 25 years. 

However, the issue here now has to do with the nature of the offence of attempted rape. The least degree of penetration without consent is rape. The question is what will attempted rape entail? It is for a sure fact that this offence has been committed several times but covered with the milder cloak of indecent assault in section 103. Indecent assault is a misdemeanor punishable by a term of not less than 6 months. There is a huge gap between at least 6 months for the offence of indecent assault and the least number of years for an attempted rape which is 5 years.

This is why there is a need for there to be a furtherance in the law of attempted rape to help we know when to charge what offence. Due to the nature of rape, attempted rape is a very tricky and slippery one. For starters, it should be noted that with this offence the only facet of Professor Mensa Bonsu’s definition of attempt that is applicable is the unsuccessful completion of the act because once it is completed, you cannot talk about unattained results. An accused cannot be heard to say that he did not cum and so his desired objective was not achieved, Therefore, he has not had actual carnal knowledge of a woman. It is legally suicidal to utter such a statement because either way you are still potentially fit for at least a term of 5 years. Once penetration is proved, regardless of the least degree of penetration, without consent, the substantive offence of rape has occurred. 

If it was the case that the penis was to penetrate the vagina deeply to amount to carnal knowledge, then we could have settled with the least degree penal-vaginal penetration as the actus reus for attempted rape. Then all other acts will shift to indecent assault. 

On one hand, what if the accused just intended to end at brush work which will then amount to indecent assault? But then again, what if he would have gone beyond brush work had he not been caught or had for any other reason had been prevented from the successful completion of the offence of raping  the victim. It is very possible that the brush work was just to prepare the way for the actual act of sex. The law will not wait for the substantive act to occur, that is, it must prepare for those who intend going all the way without consent. So it will meet them halfway to deliver justice.

Again, should it be assumed that once a man touches a woman indecently, the mens rea for rape has been established? Such that any sexual act following which has not yet resulted to penetration makes it for attempted rape?

The difficulty to break this down is more reason for us to delve into this area in our quest for justice.

The first instant that should qualify as an actus reus for attempted rape is brush work. This is where the penis makes contact with the labias, the clitoris, on the vagina or the female reproductive organ of the female generally. A person who goes all the way to makes such contact speaks to the intention of the person to have carnal knowledge of the female. Now where there is a lack of consent to partake in this activity, it should suffice for attempted rape because there is a very thin line between penetration and the location of the penis in this case. A probable argument that may crop up is that such a person may only have aimed to do just that but can we really take the risk? Just as it is safer to stay on the side that roots for ignorance of the law being no excuse, the author thinks it is safer to classify brush work without consent as an actus reus for attempted rape. 

The next and closely related to the above is where the accused has been caught naked and on top of the victim or about to mount the victim. Note that lack of consent is very essential here. As suggested by one lecturer Maame Yaa Mensa Bonsu, attempted rape should go beyond two people in a room fully dressed; there should be something more that speaks to rape. Granted that this should suffice, should it only count when the woman is naked, and the man is not? It is not odd to say that a fully dressed man on top of a naked woman intends to rape her because being naked is not an important requirement to have carnal knowledge. The man could pop his penis through the zip and carry out the act. The only reason why there should be at least one of them naked is that in criminal law, we are looking for proof beyond reasonable doubt and not a balance of probabilities. Therefore, being fully dressed does not speak beyond reasonable doubt to an attempt to rape. In such a case, indecent assault may be the charge.

Despite the argument above, we could also look at the situation where despite being fully dressed, there is ample evidence that speaks to the intention to have carnal knowledge of the female and a brutally frank account of resistance if I may borrow Justice Dotse’s words. 

Consider an instance where in a room together, a male starts to undress a female and she resists but to no avail, can that amount to attempted rape? In a situation where the level of resistance has escalated to the extent that clothes are ripped apart, it could easily make the bed for the accused to lay in. It would be right to convict a person who continues to undress a female despite her resistance of attempted rape especially where he isn’t able to complete the act because she was able to escape successfully.

There may be more occurrences that qualify as actus reus for attempted rape, but the basic requirement should be that there was some attempt to penetrate without consent. Where there is some naked display, it eases the burden to prove this. However, where there is nothing revealing, evidence must be provided such that no trail of doubt would be found. Whatever be the case, the prosecution must bear in mind the requirement of proving beyond reasonable doubt.

It should go beyond a -“The accused pulled me to his bedroom. He removed his trousers leaving his white boxer shorts on. He pushed me unto his bed and had sex with me.”- narrative as presented by the prosecution in the case in RICHARD BANOUSIN V THE REPUBLIC, supra.

This article is a clarion call to all in the legal fraternity to look into this area of our criminal law should any case come up in the near future, coming to a conclusion wouldn’t be a herculean task.  Males are unfortunately left out in rape victimizations and until then, these are the pointers that the author believes will serve as a guide to the current position on attempted rape.