FLASHBACK- ADVOCACY: THE DOMESTIC VIOLENCE BILL AND THE MARITAL RAPE PROVISION- DO WOMEN REALLY MEAN IT IF THEY SAY NO? (PART I- REAL RAPE)
DEDICATED TO HON HAWA YAKUBU AND NANA OYE IN SUPPORT OF THEIR MODEST STRUGGLES FOR DEFENCELESS GIRLS AND WOMEN IN OUR SOCIETIES
The news going around these days is that the Ghanaian Woman is honestly agitating for the insertion of the marital-rape provision in our Domestic Violence Bill that seeks to address all forms of aggressions or molestations in matrimonial and family homes.
It is undeniable fact that women around the world- black or white, from wealthy or poorer nations, share some basic characteristics and problems. The issue of male dominance and exploitation continue to occupy the busy minds of many feminist groups. In recent times we learnt with disgust, how a judge in Asamankese, in the West Akyem District, sentenced a 25-year-old man, to 8 years imprisonment and a fine of six million cedis for cruelly and repeatedly, raping an eight-year-old girl, whose mother was on a three days journey? With teenage pregnancy perched at an average age of 11 years and, our Eastern Region, on top of the national statistics, we had expected serious revenge to deter potential offenders but how wrong we were.
This article, therefore, assesses the Ghanaian Woman’s pleas in the context of the English Sexual Offences Act 2003, especially, on the issue of assault by penetration, sexual assault and causing a person to engage in sexual activity without consent which in respect of child victims under 13, consent or its absence is irrelevant. Because the issue under discussion consists of two words- marital and rape, the most appealing question might be, what is rape at all? Well, rape is a word still yearning for an exhaustive definition. In the United Kingdom as in the Republic of Ghana, we know it to be criminal offence that could attract serious punishment when one is found guilty. However, rape is not a favourable word in the minds of judges and jurors alike, especially, where the victim is an able adult woman.
As feminist critiques contend, the legal definition of rape has proved hugely tricky because it is based upon the construction of the act of rape from a male perspective and its failure to consider adequately female experience of acts of sexual violence. For example, in DPP v Morgan  A. C. 182, Lord Fraser said at 237* that: It seems to me that.. the mens rea of rape is an intention to have intercourse with a non-consenting woman? If that is so, then the logical difficulty of requiring a belief in the woman’s consent to be based on reasonable grounds arises sharply? Lord Cross also said, a man who has intercourse with a woman, believing on inadequate grounds that she is consenting to it, does not commit rape in ordinary parlance or in law.
In her article, Rape and the Legal Process, reviewed by Celia Wells, Jennifer Temkin argues that there is an implicit assumption, perhaps connected with the predominant liberal idea of equality, that law affects women and men in the same way. But only in some discrete areas, as in family law or sexual offences, are women acknowledged as having different experiences, gender stereotyped assumptions about the roles, expectations, aspirations, opportunities and abilities of women and men (L.Q.R. 1988, 104(JUL) 479-482). In Mrs Morgan’s rape case, Mr Morgan had brought his three friends home and have sex with his wife. Morgan told the friends that any resistance from her wife must be construed as consent because she enjoys struggles when having sexual intercourse with men, who were completely strangers?
Of course in the western world, there is a legend that a sexually weak Mr. A, can negotiate with his wife so as to invite Mr. B to do the job for him whilst he takes the pleasures. The woman may also bid for another woman for the husband and that may not damage the matrimonial home. In Germany, it is dubbed DREIER- thus, adantem- so to speak, in Akan language. There could be a situation where even two marriage couples may engage in this sex adventure or exchanges. We are tutored to comprehend that after this cooling-off period, no one attempts any nicodemous approach to outwit the other.
It is explained that if this happens, the man or the woman would be honest enough to tell the other spouse. As odd as it may seem to us- we mean different cultures, a good pal sees no infidelity about this. We are not heaping any moral pyramid here. However, it could be visualised, why unacceptable it might be for a defenceless woman, Mrs Morgan, aiding and abetting by her husband, a senior Non-Commission Officer (NCO) in the Royal Air Force and his other defendants younger and junior members of that service, was awakened from sleep in a single bed in a room which she shared with one of her children, being dragged by her husband and colleagues and in part, carried out on to a landing and then into another room which contained a double bed and subjected to sexual intercourse in turn, finishing with her husband.
Despite her struggles, screams and shouts to her son to alert the police, one of the men cruelly put a hand over her mouth. She repeatedly called out to her husband to tell the soldier colleagues [asraafuo no] to stop. But her pleas were ignored, on the wrong misinformation from her husband that she- Mrs Daphne Ethel Morgan, was kinky and any apparent resistance on her part would be a mere pretence. In summing up the jury direction the judge said: The crime of rape consists in having unlawful sexual intercourse with a woman without her consent and by force. Those words do not mean there has to be *187 a fight or blows have to be inflicted. But there has to be some violence used against the woman to overbear her will or that there has to be a threat of violence as a result of which her will is overborne….
So the jury had to consider whether each defendant honestly and reasonably believed that she [Mrs Morgan] consented and that it was for the prosecution to prove that he did not so believe? They were convicted, including Mr Morgan, for aiding and abetting rape. But the defence appealed on the ground, [inter alia], that the jury had been misdirected by the indication that the Crown could establish the necessary mens rea for rape. Morgan’s statement, according to the police, was equivocal, but in evidence he asserted that his wife agreed in advance and, indicated her pleasure in doing so. Thus, the only protest voiced by his wife was that one of the men was not wearing a contraceptive sheath.
The subjective view in Morgan’s case is no longer the law. But, the general assumption is that most women lie about rape. So, rape convictions against acquaintances entail some impediments. In R v A, the House of Lords allowed evidence of complainant’s previous sexual history where there was prior relationship. Evidenced that complainant invited D’s home or was at D’s home and previous sexual history used to suggest consent and for that matter, could weaken credibility. It is assumed that the victim must be a ladylike woman so as to be able to endure intense cross-examination that involves, financial situation, role as mother, past drug-taking, alcohol and abortions. If the woman fails, the police might not pursue the allegation?
Focus upon dress and the woman’s obligation to report the attack immediately or evidence of recent complaint, in the words of Bourne and Derry (2005), are some of the woman?s struggles to defend herself. The reality is that if a woman previously had consensual sexual intercourse with a man and in the later intercourse, she did not protest in any way to indicate to the man to stop, according to Rights of Women Report UK (Mar 2006), it might be more difficult to prove the offence. There is assumption that women are prone to being raped, and so the evidence that helps the court to assess their truthfulness is chiefly significant (Ibid).
In the UK, the Sexual Offences Act 2003 provides that (1) A person commits an offence if- (a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. Thus, for the prosecution to convict Kwame or Kwaku for rape, any one of the following acts must be proved: Intentional penetration, absence of consent, and absence of reasonable belief in consent. Sub-section (2) makes further provisions on mistaken belief in consent, and Sub-S(3) confirms the application of SS.75 and 76 to the offence. Section 4 creates a new offence where Kwame or Kwaku were to be found to have caused, for example, Afia or Ekua, to engage in sexual activity which she does not consent.
The origins of the Act lie in the proposal of a review carried out for the Home Office- Setting the Boundaries (2000): Reforming the Law on Sex Offences, Vol.1 (chair: Betty Moxon), that the Government accepted most of those suggestions in its White Paper of 2002: Home Office, Protecting the Public (Cm.5668, 2002). This is an extension of the traditional S.1 (2) of the Sexual Offences Act 1956 as substituted by S.142 of the Criminal Justice and Public Order Act 1994, which provides that a man commits rape if he has sexual intercourse with a person…who at the time of the intercourse does not consent to it, or is reckless as to whether that person consent to it.
In R v Olugboja (1981)73 Cr App Rep 344, the jury was told that a person submits when she or he yields, or gives in to pressure of some kind. Now, a person consents if s/he agrees by choice and has the freedom and capacity to make that choice? Situations in which a person may lack the choice to give or withhold consent may include where they are intoxicated with drink or drugs or if they have a mental illness (Malone (1998)). There is no ongoing consent, therefore, we might find it difficult to rely on previous sexual intercourse as defence as for example, Afia Dufie can withdraw this at any time if she no longer wanted and if Kwame or Kwaku continued, then he may commit an offence. If Komla or Kwashie raped Afia in front of Adjorkor and out of fears, Adjorkor submits, there is no consent.
Thus, one cannot at trial, argue lack of force as evidence of consent, although Adjorkor succumbed. In Ghana, could rape mean where we attempt or succeed in subjecting the woman or girl, against her will, in having sexual intercourse with the accused? In England, a person commits an act of gross indecency with or toward a child under the age of 16, or incites a child under that age to such an act with him (S1 of Indecency Act 1960 as amended by the Criminal Justice and Court Act 2000). If the defendant has a genuine belief (whether or not on reasonable grounds) that the victim is age 16 or over, he is not guilty (B v DPP (2000)). S5(1) of the Act creates the offence of rape of a child under 13 years.
The defendant has no defence even if he honestly thought that the child was over 13 [See, abuse of position of trust under S17]. At this point, it must be suggested that if Ghana were to be able to control its teenage pregnancy and abortions, it would be expected that lawmakers take a serious examination of our criminal justice system so as to protect genuine rape victims such as that innocent 8-year-old girl from Asamankese District. Not overlooking the enticement that occurred at Mpraeso Secondary School, where with the help of a local student, alleged foreigners lured scores of schoolgirls into a local hotel for a sex spree.
Asante Fordjour authored this article and was first published at Ghanaweb, on Tuesday, 30 May 2006.