What Is Rape in Ghana- Whether or Not a Woman Can Rape a Man and Whether or Not a Female Below 16 Years Can Become a Rape Victim?

In most jurisdictions across the globe, rape is a sexual offence and it is punishable under criminal law. However, for rape to be a criminal offence, a statute already in force and also not repealed during the rape trial should have prohibited the physical act that constitutes the offence of rape and the statute must equally define the punishment for the Offence of rape. This is called the principle of legality and it is upheld by clauses 5 and 11 of Article 19 of Ghana’s 1992 (Fourth Republican) Constitution and equally supported by the cases of British Airways v Attorney General [1997-98] 1 GLR 55, Tsatsu Tsikata v. The Republic [2003-2004] 2 SCGLR 1068. and Gligah & Atiso v The Republic [SCGLR 870, Criminal Appeal No. J3/4/2009 Decided on 6 May 2010.

In Ghana, rape is a societally condemnable act and therefore once it is established, the victim is punished severely with the custodian sentence. Quintessentially, even though rape is a sexual act, its definition is legal within a jurisdiction and it is the legal definition that helps the prosecution to prove the offence of rape against an accused person in order to find him or should I for now say to find him or her worthy of punishment.

In the Ghanaian society, rape has become a common word because people are often accused of the offence when a sexual act occurs. But does every sexual intercourse amount to rape?

The issues for resolution in this article are to find out what actually constitutes rape in Ghana, and if rape indeed carries a legal definition, and whether or not a woman can successfully be accused of raping a man or another woman in Ghana. Again, whether a female below 16 years can accuse anyone of rape or whether a female below 16 years can be said to be a victim of rape.

In this piece, therefore, I will provide the legal definition for rape and support it with statutory provisions and relevant case law. I will equally highlight the elements of rape and show conclusively that rape is a gender and age specific offence hence a woman cannot rape anyone and a female below 16 years cannot be said to be a victim of rape. Also, a boy below 12 years cannot be accused of rape.

Section 97 of the Criminal Offences Act, 1960 (Act 29) criminalizes rape or makes it as a felonious crime hence its proven commitment attracts the custodial sentence of not less than 5 years and not more than 25 years. As such, a court that jails a person for 4 years or 26 years for the offence of rape commits an illegality worthy of being set aside in terms of the duration of the punishment being reviewed judicially. Sections 98 and 97 of Act 29 jointly and respectively provide verbatim, “Rape is the carnal knowledge of a female of not less than sixteen years without her consent. 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 twenty-five years”.

Definition and Elements of Rape
From the proviso of Section 98 of Act 29, one may logically deduce the elements of rape to include the following and all these elements must be proved by the prosecution beyond all reasonable doubts in order to find the accused person blameworthy of rape and the punishment for it. The elements of rape are:

There was carnal knowledge of a female or the female was carnally known.
The female is not less than 16 years or the female is 16 years and above.
The female did not consent to the carnal knowledge.
The accused is the person who had carnal knowledge of the female victim.

Firstly, for an act to constitute rape in Ghana, the accused must have had carnal knowledge of the female victim. What then is carnal knowledge? Section 99 of Act 29 provides among other things that the carnal knowledge necessary for the offence of rape is complete on proof of the least degree of penetration. Accordingly, the Supreme Court of Ghana per Dotse JSC in the case of Gligah & Atiso v The Republic (ut supra) defines carnal knowledge as “…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 brush work, penetration would be deemed to have occurred and carnal knowledge taken to have been completed”.

Suffice it to say that under Ghanaian criminal law,

Brushing a 16-year-old or above female’s vagina with the penis without her consent does not form part of the elements necessary to prove rape.
If the penis does not penetrate the female victim’s vagina, the act does not amount to rape.
The depth of the penetration (how deep or how shallow) is immaterial in proving rape. What is material is that penile penetration must occur beyond what is described as brush work.

Summarily, therefore, it does not lie defensively in the mouth of a person accused of rape to say that his penis penetrated the vaginal only slightly or shallowly.

Secondly, the female victim of rape must be 16 years or more in age. It is, therefore, legally reasonable to submit that per the criminal laws of Ghana, a female below 16 years cannot successfully accuse a person of rape. Said differently, a female below 16 years whose vagina receives penile penetration without her consent cannot be said to be a rape victim. However, even though such a sexual offence against a female below 16 years does not amount to rape, it may as well constitute defilement which is also an offence under the criminal laws of Ghana and therefore punishable. The discussion of defilement may hereby be reserved for another day.

Thirdly, the prosecution must as well prove beyond reasonable doubts that the 16-year-old or more female victim did not consent validly to the carnal knowledge or penile penetration [Papadimitropoulos v The Queen (1957) ] HCA 74.

Section 14 of Act 29 governs consent and quintessentially, Section 14 (a) of Act 29 provides that consent to a sexual act is void if a female of 16 years or more who is insane or immature or of any other permanent or temporary incapacity whether from intoxication or any other cause consents to the sexual act without understanding its nature and consequences. Illustratively, Mr. A may be held liable for rape if he induces or drugs a woman to consent to carnal knowledge or penile penetration of the vagina by personating the woman’s husband. The woman’s consent here will be invalid and will therefore not operate to exculpate or exonerate the person accused of rape (the rapist).

Also, if a female of 16 years or more gives a valid consent to a sexual act but during the sexual intercourse, she demands that the man should stop the penetration and the man refuses, then the man commits rape if all the other elements are proven. This assertion was upheld in the New Zealand case of Kaitamaki v The Queen [1985] AC 147 decided by the Judicial Committee of the Privy Council where it was held among other things that “If a woman withdraws a valid consent to sexual intercourse or a man becomes aware of her lack of consent during the sexual intercourse, he must cease intercourse immediately. Failing to withdraw or stop the penetration constitutes rape”. Under this circumstance, therefore, a wife who did not consent to a sexual intercourse with her husband may accuse her husband of rape or better still, the charge of sexual abuse under the Domestic Violence Act, 2007 (Act 732). It means that once a valid consent is established, it operates as a complete defence against the rape charge to exculpate the accused person (s).

Fourthly, the person accused of rape should have been the person whose penis penetrated the vagina of the rape victim (whom the law says must be 16 years or more). This calls for an accurate identification of the perpetrator(s) by the rape victim (Papadimitropoulos v The Queen). In the case of Gligah & Atiso, the rape victim (Cynthia Nyante) successfully identified the appellants who are two Police Officers (G/CPL Valentino Gligah and EC/1 Abdulai Aziz Atiso) as the perpetrators of the rape on her. Per the definition of rape in Section 98 of Act 29 and Dotse JSC’s meaning assigned to carnal knowledge in Gligah & Atiso, only a man can be accused of rape in Ghana and only a female of 16 years or more can fall a victim of rape if she did not consent to the sexual act of penetration or she did but later withdrew the consent.

Falling on Sections 13 (1)(2) of Act 29 which governs criminal causation and Section 26 of Act 29 which provides the legal capacity for criminal offence, if B, an 11 year old boy’s penis penetrated the vagina of a woman who is 16 years old or more without her consent, B will not be liable for rape because per Section 26 of Act 29, a person below 12 years is not capable of committing any crime in Ghana. However, if B’s penile penetration of the woman’s vagina was induced or influenced by Mr. A (an adult of sound mind), then Mr. A may be held liable for causing or committing the rape within the meaning of Section 13 (1)(2) of the Act 29. It means that Mr. A used an involuntary agent (B, an infant) to commit an offence so Mr. A and not B may be held liable.

Conclusion
In conclusion, in Ghana, only a man who is not doli incapax (capable of committing crime) can commit rape because naturally, only a man has penis. Also, only a female of 16 years or more in Ghana can fall a victim of rape because naturally, only a female has vagina. Suffice it to say that rape is a gender and age-specific offence in Ghana.

It is worth remembering that the prosecution who acts on behalf of the State and for that matter the rape victim must prove all the elements of rape discussed herein beyond reasonable doubts before the accused person for rape may be found blameworthy and punished. As such, it is not enough to only say that a person commits rape all because his penis had penetrated a woman’s vagina. All the other elements of rape must be proved. In the case of Richard Banousin v. The Republic [Criminal Appeal No: J3/2/2014], for example, the Supreme Court (SC) of Ghana quashed the conviction of the accused/appellant (Richard Banounsin) on the grounds that the prosecution failed to prove the essential elements of rape beyond a reasonable doubt in order to find the accused/appellant blameworthy of punishment for rape. In other words, the SC set the accused free from custody because the Apex Court did not find him guilty of raping the victim/complainant, Rashida.

It is also evident from the discussion that a woman cannot be held liable for the offence of rape or be a perpetrator of rape because she lacks the organ (penis) necessary for causing rape. Rape involves natural carnal knowledge. Also, a female below 16 years cannot be said to be a rape victim. Such a person would rather be a defilement victim because rape is age-specific (victim must be 16 years or more).

Summarily even though the offence of rape in Ghana definitely involves a sexual act, it is not every sexual act that amounts to rape. A woman cannot, therefore, just shout that she has been raped then a man will hastily be punished if all the elements of rape identified by law are not proved. A man cannot also allege that a woman raped him. Though a sexual act, rape is a statutory creature in Ghana.

~Asante Sana~
Philip Afeti Korto (Philipo)
Hospital Administrator & Columnist ([email protected] ).