SILENCED VICTIMS: ADVOCATING AN AMENDMENT OF THE LAW ON RAPE IN GHANA by Ariel Amber Asmah

Until recently, rape was thought to be, and defined as, a crime committed only against women. Whilst many states still hold that opinion, some have set out to be pacesetters by amending their penal code, giving rape a gender-neutral definition. For instance, section 1(1)(a) of the United Kingdom’s Sexual Offences Act 2003 states that penetration of the “mouth, anus or vagina with [the defendant’s] penis” is sufficient for rape. In this article, I will discuss the Ghanaian legal position on rape, striving to highlight the need for an amendment of the existing law.

Though rarely reported, many men are victims of harassment, sexual assault and rape on a daily basis, and their perpetrators include both men and women. My interest was piqued when news of Reynard Sinaga broke the internet. Reynard Sinaga, an Indonesian student, living in Manchester, United Kingdom, was found guilty of 159 counts of sexual offences against 48 men. The police claimed to have evidence that he had assaulted at least 190 men, 70 of them being unidentified. He would wait for men leaving nightclubs and bars, before leading them to his flat, often with the offer of going somewhere to have a drink or call a taxi. He drugged his victims with a date rape drug, then proceeded to assault them. Many woke up with no recollection of what had happened. Others had been unaware that they had been raped until they were contacted by the police. The prolific rapist was nabbed in June 2017 when one victim who had regained consciousness whilst being assaulted fought Sinaga off. Sinaga was sentenced to life imprisonment.[1]

In Ghana, rape is defined in section 98 of the Criminal Offences Act, Act 29, as the “carnal knowledge of a female of not less than 16 years without her consent.” To succeed on a charge of rape, the prosecution will have to prove that the victim was female; she was not less than 16 years; she must have been carnally known and the carnal knowledge must have been without her consent. This legislation out rightly fails to provide protection to men who are equally potential victims of rape. The formulation of rape in Act 29 excludes male victims and female perpetrators. It fails to acknowledge that each ingredient of the heinous crime can similarly occur to a man. Also, it reinforces the gender stereotypes in the society: that men are supposed to be aggressive, tough, insensitive and physically imposing. It depicts that men should always be able to protect themselves against their perpetrators.  There are many who believe that male rape is not a significant social problem because of the few reports. However, these incidents go unreported because of the stigma society attaches to it. The victim is seen as less of a man if raped by a woman whereas his sexual orientation is questioned if raped by a man. Both male and female victims of rape experience similar emotional and physical trauma. They are equally susceptible to sexually transmitted diseases. Both incur genital and non-genital injuries. It is equally humiliating, degrading and physically hurtful. Surely, the extent of trauma each sex suffers is immeasurable. Though many instances of assault go unreported, some men are brave enough to make reports.

Carnal knowledge is the penile penetration of the vagina. As seen in Queen v. Papadimitrupulos, no other mode of penile penetration will suffice. Hence, penile penetration of the anus does not amount to rape. Given the biological physiology of a man, he can never be carnally known. The modus operandi of male rape differ with the sex of the perpetrator. For male on male rape, the penile penetration is done through the only orifice of a man, his anus. Contrarily, in the case of a female perpetrator, the man is ‘forced-to-penetrate’ her with his penis, either vaginally or anally. The latter is not even closely recognized as sexual assault, even to mention rape. In the 2010–2012 National Intimate Partner and Sexual Violence Survey (and a prior edition of this study completed in 2010), the Centers for Disease Control (CDC) included as a category of sexual violence, “being made to penetrate.” It captures instances in which male victims were forced to or attempt to sexually penetrate someone (of either sex), either by physical force or coercion, or when the victim was intoxicated or otherwise unable to consent.[2]  James Landrith, in 2008, shared his experience of being forced to penetrate a female after nearly 20 years. While incapacitated from drinking, he was forced to penetrate a female acquaintance he had only met a bar the previous night. He remembered feeling disoriented and awakening briefly to her straddling him, but never saying yes. The morning after she forced herself on him again, citing that he would hurt the baby if he struggled.[3] Certainly, penetration inferred from the criminal code could include reception, considering the fact that the woman’s genitalia cannot penetrate an aperture but can receive a penetrant.

Consent is an essential element in the definition of rape. A charge of rape cannot succeed if the woman consented to the sexual intercourse. While many would rather believe not, it is highly possible for a woman to have sexual intercourse with a man without his consent. An unfounded claim they make is that a man is always a willing party: that he never rejects a sexual offer. Not only, but also that his erection signifies his consent. They fail to realize that an erection is a biological response, it does not in any way indicate consent or sexual pleasure. Erection is an autonomic nervous system response which results from a myriad of stimuli: sexual, fear, anxiety, terror etc.   As found by Roy J. Levin and Willy Van Berlo in the Journal of Clinical Forensic Medicine, slight stimulation of the genitals or an increase in stress can cause erections even with no specific sexual stimulation.[4] Similarly, women producing vaginal lubrication or orgasming during rape does not indicate sexual pleasure. It is simply a biological response to severe emotional states.

As mentioned earlier, in most instances of male rape, victims unwillingly ‘consent’ to sexual intercourse because of certain circumstances they find themselves. Examples of such circumstances include but are in no means limited to: being intoxicated or unconscious; use of force; threats and blackmail etc. The Criminal Offences Act mandates that consent must be voluntarily given, that is, given freely and fully. The person giving the consent must be of full age and capacity. Section 14(a) outlines circumstances which vitiates consent, relevant to this article is that, “consent is void if given by a temporarily incapacitated person like an intoxicated person, or a drugged person or a comatose person.”  Duress is also included as a vitiating factor in section 14(b). it does not entail consent if the person submits to an act because he is made to believe he will be overpowered if he doesn’t submit or something unpleasant will happen to him or another person. Thus, supposed consent obtained from an intoxicated or incapacitated man, or a man-made vulnerable by way of threats or force does not suffice.

The current law on rape protects only the traditionally vulnerable gender—women. A closer look, however, reveals several problems. For one, the current law fails to provide protection to men. In cases of male-on-male rape, the suitable charge a victim can bring against his perpetrator is unnatural carnal knowledge, that is, under the current criminal code. Unnatural carnal knowledge involves penile penetration per anum. This is a misdemeanor, carries a prison term of not more than three years. Whilst in instances of female-on-male rape, the suitable charge will be indecent assault, which is a misdemeanor and carries a prison term of not less than six months. The charge of indecent assault involves a forcible sexual bodily contact; or a sexual violation of the other person that does not involve any penile penetration, both without the consent of the victim.  As such, the woman will be charged with the forcibly sexual body contact or the sexual violation but not for the forced penile penetration. A question I leave to the lawmakers is, is that term of imprisonment suitable for such a heinous crime? Considering that rape, a first degree felony, carries a term of imprisonment of not less than five years and not more than twenty-five years.

The 1992 Constitution of Ghana mandates that all persons be treated equally before the law. It adds that a person should not be discriminated on the basis of gender, race, colour, religion, creed, social or economic status. Discrimination is further described as ‘different treatment given to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description. Despite recent recognition of male on male rape, male rape remains a gendered crime. Whereby the stern justice is meted out to perpetrators of female rape, whilst the justice goes easy on perpetrators of male rape. The gender sensitivity of the crime clearly shows how the law undermines the trauma and experience men suffer. It places much and unfair importance to female rape, when actually, both incidents are equally traumatizing and criminal.

In conclusion, I propose that the legislation on rape should be amended and modified with a gender sensitive tone.  A gender-neutral definition of the offense will equalize the position of both genders when they are victims of sexual assault. It will be a step in the direction of gender equality as mandated by the constitution.

 

END NOTES

[1] Reynard Sinaga: ‘Evil sexual predator’ jailed for life for 136 rapes, BBC News (2020), https://www.google.com/amp/s/www.bbc.com/news/amp/uk-50987823 (last visited Jul 16, 2020).

[2] Smith, S.G., Chen, J., Basile, K.C., Gilbert, L.K., Merrick, M.T., Patel, N., Walling, M., & Jain, A. (2017). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010-2012 State Report. Atlanta, GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention. pp 25-26. Retrieved 15 July, 2020

[3] [3] Sarah LeTrent, Against his will: The reality of male rape – CNN (2013), https://edition.cnn.com/2013/10/09/living/chris-brown-female-on-male-rape/index.html (last visited 15 July, 2020).

[4] Ibid.