THE LIMITATIONS OF RAPE IN GHANA by Ama Serwaa Sarkodie-Mensah

This article is intended to consider the crime of rape in Ghana and its gender limitations and recommend possible amendments that should be made to the existing law to render it more gender-neutral.

For the purposes of this article, I undertook a research exercise for the purpose of acquiring data on;

  • female and male exposure to certain crimes particularly rape- either as victims or perpetrators,
  • the statistics on the number of cases reported to the police,
  • the number of cases in court- those pending and those that have been concluded, and 
any general statistics or data acquired.

 

I visited Parliament on various occasions to acquire the Hansard that has the recordings of all the proceedings before the Domestic Violence Bill was passed. The Hansard has records from the second reading, consideration stages and the third reading. 
The Hansard looks at various discussions and statements made as to issues of female and male exposure to certain crimes and which gender is likely to be victims or perpetrators to certain crimes. Also, reasons some sexual offences are not reported.

HANSARD on the Domestic Violence Bill

The report that was presented to the House by Mrs. Esther Dappah Obeng stated that the problem of domestic violence and sexual abuse in Ghana is a social evil that affects the family as a unit of society. The report stated various forms of violence, which included; beating or inflicting wounds on spouses especially wives and the abuse of house helps and children. This goes to show that even from the onset the committee set up to look into the bill saw some violence or sexual offences as gender bias.

Reasons why issues of Domestic Violence are not reported

The Joint committee took note of the fact that victims of domestic violence suffer without any compensation while their assailants virtually escape with lesser degree of sanctions. It was also found that the victims of domestic violence were requested to pay medical fees for a medical examination request form which was needed by the police for investigation. The monies collected by the medical officers was in anticipation of transport expenses if summoned to give evidence in court. Most victims do not have this money so end up not completing the process. [1]

Another reason that was given by the committee was that a number of victims of domestic violence in the absence of alternate dwelling places continue to suffer various forms of abuse from their assailants while they continue to live under the same roof with them. Another reason people do not report abuses is that the victims are not aware that what they go through constitutes an offence.

 

Rape victims remain females as stipulated by the law, it was however recorded in 2010 and 2011 that a male was a victim to rape. Also, the suspects are mainly males, there are however cases where the female has been recorded as a suspect. The highest reported case was in 2009 with 422 cases and the lowest reported cases was in 2014 with as low as 3 reported cases. Furthermore, the Prisons Headquarters provided statistics on the number of prisoners that have been convicted for the sexual offences under discussion were all male convicts.

 

DEFILEMENT

This offence seems to be the highest recorded sexual offence. Although by law the victims of this offence is not gender bias, the victims are more likely to be females, with the highest number of victims for females recorded in 2013 as 1,227 victims.

For the males the highest number reported was 25 victims in 2009 and 16 victims in 2015.

 

NGOs working in the area of Gender and Domestic Violence

I selected a number of NGOs that work in relation to the topic above. These include;

The Gender Studies and Human Rights Documentation Centre (GSHRDC)

The Ark Foundation Greater Accra Gender Based Violence

 

ARK FOUNDATION

In July 2012, The Ark Foundation, Ghana conducted a survey in three regions; Accra, Kumasi 3and Tamale. The research was targeted at finding out whether there was a coordinated response to domestic violence in Ghana. The research showed that while 100% of surveyed personnel respond to issues of domestic violence, 65% limit their response to physical forms of abuse in Accra. However, in Kumasi, 100% of respondents regularly respond to issues of domestic violence.

DOVVSU plays a lead role in responding to physical forms of abuse. Notably, only two NGOs respond to issues of domestic violence. In Tamale, only 25% of the respondents work directly with issues of domestic violence while most focus on girl empowerment projects and awareness creation activities.

 

GENDER STUDIES &HUMAN RIGHTS DOCUMENTATION CENTRE

In two in ten women, their first experience of sexual intercourse was by force. 17% of the total number of women interviewed who have been victims of sexual violence were between 10-14 years, 64% were between the ages of 15-18 and 19% were above 19 years. Three in ten women have been forced by their male partner to have sex sometimes. There were also cases of school authorities threatening the child unless he or she gave in to sex this was the same amongst women who were being offered jobs.

 

 

STUDY OF ACT 29

Per Section 98 of The Criminal Offences Act, 1960 (Act 29), Rape is the carnal knowledge of a female of not less than sixteen years without her consent.

Section 99 states that, ‘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.

In Ghana the offence of rape is gender specific i.e. a woman cannot be the perpetrator of rape – a woman cannot rape a man as there must be proof of the least degree of penetration. As the woman’s sexual organs do not permit her to ‘penetrate’ another person.

The possibility of a man being raped by a woman does not lend itself to easy acceptance because it is largely thought that a man cannot be overpowered and ravished by a woman or that as long as the man maintains an erection he is signifying his consent to be bound the sexual act with the woman. In 2012, there was a recorded case of a female suspect in a rape case, three (3) cases in 2011 and two (2) in 2010 per reports provided by DOVVSU. However, in most cases, the females were not recorded as arrested.

 

It is essential for the prosecution to prove penetration in order to succeed on a charge of rape. Section 17 of the 1992 Constitution of The Republic of Ghana states that : (1) All persons shall be equal before the law.       (2) A person shall not be discriminated against on grounds of gender, colour, ethnic, origin, religion, creed or social or economic status. I understand this to mean no person shall give different treatment to different persons attributable only or mainly to their respective descriptions as afore-stated. By this, any person who feels he or she has been treated differently other than the law has specified can have their grievances addressed.

 

On the contrary, the definition of rape in the statute is in itself discriminatory. Unlike the other sexual offences which give both men and women the equal opportunity to address their grievances, the definition of rape, gives reserved rights to only women to have their grievances addressed in the courts.

 

Is this in itself not discriminatory to men? Men experience the same kind of trauma, shame, physical and emotional disturbances that women go through when they are raped. If this is what happens, why then is it that only women should have their grievances addressed in our courts. Does this not create discrimination on grounds of gender contrary to our constitution?

 

Is there never a circumstance where a woman cannot perpetuate the act? Even in the middle of the act, is there not a situation where a man can revoke his consent before the intercourse is over? This can happen in situations where the woman was in control of the act. Will this not amount to rape on the part of the woman? An example can be seen in the illustration below: Herbert and Vanessa are in the process of having sex. Vanessa, in order to make the act more intriguing, suggests that Herbert be handcuffed to the bed. Herbert agrees to the suggestion. Vanessa was on top of Herbert at all times. During the process, Herbert feels pains and asked to be released. The lady refuses on all accounts till she climaxes. Is this not a clear case of Herbert revoking his consent to the sexual encounter with Vanessa?

 

Whatever the case, our law strictly says that a man cannot be raped by a woman because by even getting an erection, a man is consenting to the act. So under circumstances where a man revokes his consent before the intercourse is over, it will be held that he still consented to it. Should a man be made to suffer because of the form of his nature, because he gets an erection and because he does the penetration? What about the female rape victim who remained lubricated during the act? Was she also consenting to the act?

 

Unnatural Carnal Knowledge

 A person may be guilty of unnatural carnal knowledge in one of three ways, namely:

  1. 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 – section 104(1)(a)
  2. 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)
  3. Or, having unnatural carnal knowledge of an animal – this instance is a misdemeanor – section 104(1)(c)

 

Since the definition of Rape is contrary to Article 17 of The 1992 Constitution, and the Constitution surpasses statutory provision, then the Constitution must be upheld. Since it does not allow for discrimination to prevail, then the definition of the law concerning rape must be amended to make it more suitable and gender neutral. In some jurisdictions, the definition of rape has been amended by the substitution of “female” by “person” to render the offence gender neutral.

 

Conclusion

The laws of Ghana must be amended in the same vein to make provision for the situation where a female is the perpetrator and a male is a victim by amending the elements of the definition under Section 98 and 99 of Act 29 must be amended; female and penetration. This would enable the law to cover offences where the male is a victim. This analogy would be dependent on consent only, thus, proof of the least degree of penetration would be taken out of the equation as a female assailant cannot penetrate a male victim.

It is the duty of the judiciary to determine what the law is when there is a contradiction between what the constitution says and what is stipulated in an Act of Parliament –Marbury v Madison. Thus it could be said that the judge must determine what the law is on a case to case basis whenever there is a clear contradiction.Consent is a complete defense to a charge of rape so the prosecution must prove absence of consent on the part of the ‘person’ that is, the victim who alleges to have been raped.

 

REFERENCES

Ofeibea Ofei-Aboagye, Rosemary (1992) – study conducted from FIDA records.

The Criminal Offences Act, 1960 (Act 29)

Criminal Law Notes-Kissi Agyebeng

Hansard Nov. 2006, 4th Series VOL.54 No.15 Domestic Violence Bill, Mr. Kojo Armah [1490]

Hansard Nov. 2006, 4th Series VOL.54 No.15 Domestic Violence Bill, [1473]

Hansard Nov. 2006, 4th Series VOL.54 No.15 Domestic Violence Bill, Mrs. Obeng [1467]

Hansard Nov. 2006, 4th Series VOL.54 No.16 Domestic Violence Bill, Mr. John Ndebugre [1596]

Hansard Nov. 2006, 4th Series VOL.54 No.16 Domestic Violence Bill, Mrs. HaJia Alima Mahama [1576}