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Is Ghana’s Law On Rape Gender Bias?

Introduction

The pursuit of equality between and amongst individuals, people and groups, has throughout history instigated various struggles with diverse consequences. As a vision, human equality is a moral commitment that underscores the necessity for the wholeness and worth of the human person, irrespective of sex, gender, race, religion, group affiliation or any socio- economic variable.

Dr. Abdul Baasit Bamba.

The offence of Rape has been described by many as the most reprehensible of all sexual offences. The definition of rape is inconsistent between governments, law enforcement agencies, health providers and legal professionals. Moreover, what constitutes rape has changed over time and varies from country to country. Originally, rape had no sexual connotation.

Under Roman law, it was classified as a form of “assault” and was described as the abduction of a woman against the will of the man under whose authority she lived. Here, sexual intercourse was not a necessary element for purposes of rape.

However over the years, the law has evolved such that sex is now a necessary element for establishing rape in almost every country. It is worth mentioning that during the 1950s in the US, a white woman having consensual sex with a black man was considered rape in some states.

Under Ghanaian law however, the offence of rape is defined as the carnal knowledge of a female of not less than sixteen years without her consent (Section 98, Criminal Offences Act, 1960). Clearly, the offence of rape is made up of three main elements which are

  • Carnal knowledge of a female
  • the carnal knowledge should have been done without the consent of the female in question.
  • the said female must be 16 years or older

“Carnal knowledge” for purposes of rape has been defined by “judicial decisions” to mean penile penetration through or by way of the vagina.

Nature, Scope&  Interpretation of the Law.

From the above law, one would immediately note that the offence of rape is gender specific, age specific and even genital specific. The offence of rape is in respect of females only. This means that a man cannot be raped by any means whatsoever; not even by another man. Also from the definition of carnal knowledge stated above, it can be gleaned that rape can occur only in respect of the vagina of a female, further making it impossible for a man to claim that he has been raped under Ghanaian law. What’s more, a woman cannot be a perpetrator of rape because of the requirement of penile penetration which penis is ordinarily non-existent in females.

In practice, there have been cases where some men have come out and alleged being “raped” by some women, that is to say, “a female had sexual intercourse with a man without his consent”. On this point it has been argued that as long as the man maintains an erection he is signifying his consent to the sexual activity with the woman. Is this always true? I think not.

On the contrary, there is scientific evidence to the effect that erection and ejaculation are normal bodily responses to physical stimulus. An erection during non-consensual sex does not mean the man wanted or enjoyed the experience.  It is therefore very clear that the provisions made under Ghanaian law on rape are gender bias against males.

This bias seems to be contrary to the purpose of Article 17 of the 1992 Constitution of Ghana which states that

(1) All persons shall be equal before the law and

(2) A person shall not be discriminated against on grounds of gender, color, ethnic origin, religion, creed or social or economic status.

(3) For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation ….

For the purpose of this article, the import of this law is that different persons should not be given different treatment based on their gender.


Article 35 (5)  further  provides that the State shall actively promote the integration of the people of Ghana and prohibit discrimination and prejudice on the grounds of place of origin, circumstances of birth, ethnic origin, gender or religion, creed or other beliefs. This law generally imposes a duty on the state to prohibit discrimination on the basis of gender.

Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICCPR) which Ghana is a signatory, also stipulates that the state parties to the convention undertake to guarantee that the rights enunciated in the covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.  

One of such rights is stipulated in Article 14 of the Convention which is to the effect that all persons shall be equal before the courts and tribunals. It must be mentioned that Ghana as a signatory to this treaty is bound by the above provision.     

From the supreme law of the land and one of the major international framework on human rights (the ICCPR), it is evident that there is an obligation on the state to prevent discrimination to individuals on the basis of sex.

Moreover, it is globally known that Ghana is an advocate of the Sustainable Development Goals (SGDs) since their inception. His Excellency President Nana Akufo-Addo on 7th September, 2017 inaugurated a 15-member inter-Ministerial Committee for the implementation of the United Nations Sustainable development Goals (SDG’s). He has also set up a unit of the presidency which handles SDG related issues.

Goal 10 of the SDGs seeks to reduce inequalities worldwide. Target 10.3 of SDG 10 seeks to ensure equal opportunity and reduce inequalities, including through eliminating discriminatory laws, policies and practices and promoting appropriate legislation, policies and actions in this regard. The effect of SDG 10 is that it calls on Ghana as a country to eliminate its laws which are discriminatory in nature.

However, Ghana’s gender bias law on rape seems to contradict and play down on the country’s effort in achieving SDG 10 and its targets. From my analysis above, it is undoubtedly clear that Ghana’s sexual offence on rape is in breach of Articles 17 and 35 of the 1992 Constitution and the Articles 2 and 14 of the ICCPR as the law on rape seems to be discriminatory on the basis of sex.

The Way Forward. 

There are many other sexual offences under Ghanaian law apart from the offence of rape; one of which is defilement. For the sexual offence of defilement, our Criminal Offences Act, 1960 (Act 29) in section 101 provides that:

“whoever naturally or unnaturally carnally knows any child under sixteen years of age, whether with or without his or her consent commits an offence and shall be liable on summary conviction to imprisonment for a term of not less than seven years and not more than twenty-five years”.

An observation which is worthy of mention is that in respect of the offence of defilement, the law is gender neutral. It uses the words “whoever” and “his or her” to describe the perpetrator and victim of the offence respectively. The offence of rape fails to depict such gender neutrality because it makes mention of “a female” and by implication “a male” as the victim and perpetrator of the offence respectively. It is therefore submitted that Ghana as a country should consider amending its law on rape to become gender neutral as it has done for its law on defilement.

Also worthy of mention is that until 2012, the Federal Bureau of Investigation (FBI), USA considered rape a crime solely committed by men against women. In 2012, they considered their definition of rape as being outdated and narrow. They updated their definition and the updated definition recognizes that a male or female can be a perpetrator or victim of rape. I believe this is a good model for the future development of the Ghanaian law on rape and Ghana as a country can follow suit.

In conclusion, section 98 of the Criminal Offences Act, 1960 needs to be amended to make the offence of rape non-gender specific and non-genital specific. A step in this direction will eliminate the discriminatory nature of Ghana’s law on rape.

 

Richard Dwamena Boampong
Delegate
Young Diplomats of Ghana

Classic Ghana

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