Criminal Law II Lecture 3 (Rape & Defilement) 2022/2023 PDF

LAW 288- CRIMINAL LAW II LECTURE 3 SEXUAL OFFENCES (RAPE & DEFILEMENT) FACULTY OF LAW, KNUST 2022/2023 LECTURE OUTLINE Introduction Rape Defilement Conclusion  INTRODUCTION  Sexual offences may be broadly classified into two main groups:...

LAW 288- CRIMINAL LAW II LECTURE 3 SEXUAL OFFENCES (RAPE & DEFILEMENT) FACULTY OF LAW, KNUST 2022/2023 LECTURE OUTLINE Introduction Rape Defilement Conclusion  INTRODUCTION  Sexual offences may be broadly classified into two main groups: sexual aggression and breaches of sexual taboos. Sexual taboos mostly depend on the cultural setting. Eg whereas unnatural carnal knowledge is a crime in Ghana, it may not be so in other jurisdictions with different cultural orientations.  The first group relates to sexual offences that involve a non-consenting victim, examples include rape and indecent assault. The second relates to illegal sexual conduct whether or not with consent; examples include unnatural carnal knowledge and incest.  RAPE Section 97 of Act 29 creates the offence of rape. Section 98 of Act 29 defines the offence as follows: Rape is the carnal knowledge of a female of sixteen years or above without her consent.   From section 98, there are three essential elements of the offence of rape:  there must be carnal knowledge i.e. sexual intercourse; ELEMENTS OF RAPE  the sexual intercourse must be with a female of sixteen years or above; and  the sexual intercourse must be without the consent of the victim.  EVIDENCE OF CANAL KNOWLEDGE  Canal knowledge is deemed complete on proof of the slightest or least degree of penetration.  It is very essential for the prosecution to prove penetration in order to succeed in establishing rape.  It is not necessary for the prosecution to prove that the hymen was ruptured or that there was emission.  R v Marsden “...Carnal knowledge was the penetration of a woman's vagina by a man’s penis. It did not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what was known as brush work, penetration would be deemed to have occurred and carnal knowledge taken to be completed. And the ingredients of rape were: (i) someone has had carnal knowledge of the victim (ii) the someone was the accused; and (iii) the victim had been carnally known against her wishes...” Dicta of the Supreme Court in Gligah & Atiso v. The Republic 2010 SCGLR 870.  CONSENT ▪ It is a good defense for a person charged with rape that the female gave her consent to the sexual act. ▪ Prosecution must prove the absence of consent on the part of the female alleged to have been raped. ▪ The prosecution may prove lack of consent by proving any of the provisions of section 14 of Act 29 which render consent void and of no legal effect for the purposes of rape.  CONSENT (cont.) Consent obtained by duress is void. R v Jones (1861) 4 LT 154 Consent obtained by fraud or deceit is void. R v Flattery 2 QBD 410 R v Elbekkay Crim LR 163 - an attempt to impersonate a husband or long-term partner would invalidate consent. CONSENT (cont.) Consent is void if the female is in the state of delirium or intoxication making her unable to understand the nature of the act. R v Charter (1849) 13 J.P. 766. Previous sexual act is no evidence of consent. A jury may however take that into consideration depending on the circumstance of the case.  CONSENT (CONT.) In Archibold’s Pleadings, Evidence and Practice in Criminal Cases (38th Ed.), paragraph 2881, it is stated as follows: “... It is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact: 1 Hawk c 41, s 7. Even that the woman is a common strumpet or the concubine of the ravisher is no excuse...”  CORROBORATION Corroboration of the evidence of a female, though desirable, is not essential in law. In R v Smith (1919) 14 Cr. App. R. 81, C.C.A, however, it was held that a conviction for rape would be unreasonable unless there was corroboration of the evidence of the female (prosecutrix).  WHO MAY BE CONVICTED OF RAPE? A person of 12 years and above. Section 26 of Act 29. The person must be a male. Section 97 of Act 29.  MARITAL RAPE Hitherto under section 42(g) of the Criminal Offences Act a husband could not rape his wife. Section 42(g) has now been repealed and the legal effect is that a husband can be charged with rape.  DEFILEMENT Under section 101 of Act 29, defilement is having natural or unnatural canal knowledge of a child below the age of 16 years. Such an offence whether with or without his/her consent is punishable by a prison sentence ranging from seven years to twenty-five years. The offence can be committed against both male and female victims. DEFILEMENT (cont.)  CONCLUSION This lecture has discussed two sexual offences – rape and defilement. The next lectures continue the discussion on sexual offences such as Carnal or Unnatural Carnal Knowledge of a person with mental incapacity, Indecent Assault, Unnatural Carnal Knowledge, Incest and Sexual Corruption of Female & Other Offences.  END OF LECTURE 3– SEXUAL OFFENCES (RAPE & DEFILEMENT) ESSENTIAL READING Statutes The Criminal and Other Offences Act, 1960 (Act 29) as amended by Criminal Offences Amendment Act, 2003 (Act 646) The Criminal and Other Offences Procedure Act, 1960 (Act 30) Books Adjei DD, Contemporary Criminal Law in Ghana (3rd ed, G-Pak Ltd 2021) 239 – 264 Baker D, Glanville William: Textbook of Criminal Law (4th ed, Sweet & Maxwell 2015) Chap 13 Ofori Amankwah EH, Outline of Criminal Law Lectures (Revised ed, 2wenty 3hird Solution 2012), 130-145 Cases All cases referred to during the lecture.  PREVIEW LECTURE 4 SEXUAL OFFENCES TO BE DISCUSSED ▪ Sexual Exploitation ▪ Carnal Knowledge of Imbecile or Mental Patient ▪ Indecent Assault ▪ Unnatural Carnal Knowledge ▪ Incest ▪ Householder Permitting Defilement of a Child ▪ Procuration ▪ Seduction or Prostitution of a Child Under 16  PREVIEW LECTURE 4– SEXUAL OFFENCES II ESSENTIAL READING Statutes The Criminal and Other Offences Act, 1960 (Act 29) as amended by Criminal Offences Amendment Act, 2003 (Act 646) The Criminal and Other Offences Procedure Act, 1960 (Act 30) Books Adjei DD, Contemporary Criminal Law in Ghana (3rd ed, G-Pak Ltd 2021) 239 – 264 Baker D, Glanville William: Textbook of Criminal Law (4th ed, Sweet & Maxwell 2015) Chap 13 Ofori Amankwah EH, Outline of Criminal Law Lectures (Revised ed, 2wenty 3hird Solution 2012), 130-145 Cases All cases referred to during the lecture.  ACKNOWLEDGEMENT The Criminal Law Teaching Team acknowledges the foundational work of Justice Dr. Richmond Osei-Hwere in the preparation of this lecture slides. Teaching Team Faculty of Law, KNUST, 2022/2023