Transcript 3 to be Free Curriculum: Presentation on Martial Rape in Ghana

Reforming the Criminal Law
to Protect Rights
The Case of Marital Rape in Ghana
Making Home a Safe Place
The Problem: Marital Rape and
Women’s Inequality in Ghana
Martial rape, where permissible by law, amounts
to a legal sanctioning of violence against women
in one of the most intimate spaces of their lives.
• Before 2007, Section 42(g) of the Criminal Offences Act
exempted spouses from revoking consent “given for the
purposes of marriage”
This provision was read to include consent to sex in
marriage
Because of this, husbands could not be held
criminally liable for raping their wives, as their wives
were deemed to have “perpetually consented” to sex
while married
Since 2007, reforms have been made to
Section 42(g) of the Criminal Offences Act.
In this lecture, we will explore:
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•
•
•
Why the reforms were made,
What reforms were made,
Whether the reforms have been effective,
What changes can be made moving forward in
order to achieve a full realization of the rights of
married women in Ghana
History of the Marital Rape Exemption
Ghana’s allowance of
the use of force in
marriage is rooted in the
British Common Law
“but the husband cannot be
guilty of a rape committed
by himself upon his lawful
wife for by their mutual
matrimonial consent and
contract the wife hath given
up herself in this kind unto
her husband which she
cannot retract”
– Sir Matthew Hale,
published 1736
• Women were not regarded as persons
once married
• By marriage spouses became one legal
personality, the husband
– Difficult to imagine the husband raping his
wife, she being himself
– Rape was not a crime against a person but a
property crime committed by one man
against the property of another
In many jurisdictions, the British Common
Law has evolved to criminalize marital rape
In the United Kingdom:
Slow evolution of the Common Law
• The idea that a man cannot rape his
wife was questioned as early as 1888
(R. v. Clarence)
• Finally explicitly removed from the
Common Law of Britain in 1991 (R. v.
C. And Another)
In Canada:
Decisive reforms to the Criminal Code
• Rape replaced with the more broadly
defined crime of sexual assault (1983)
• Court ruled that there is no doctrine
of implied consent in Canadian sexual
assault law (R. v. Ewanchuk, 1998)
In Ghana, the common law has not evolved...
... and married women continue to suffer inequality
in marriage as well as in the broader society
“Most Ghanaian women live in poverty, depend on men,
and are surrounded by attitudes and codes that tolerate
oppressive behaviour or allow serious violations of women’s
rights to be ‘settled’ without justice or accountability”
33% of women suffer physical violence at
the hands of current or previous partners
20% of women said their first experience of
sexual intercourse was by force
8% of women said they have experienced
marital rape
59% of women raped by their husbands
said they never reported the incident(s) to
anybody
Marital Rape: The Relevant Laws
• The Criminal Offences Act
– Sections 97,
– Section 98,
– Section 14,
– Section 31(j), and
– Section 42(g)
• The Domestic Violence Act
• The Constitution
Criminal Offences Act (Act 29)
Section 97: Provides that rape
is a “first degree felony and
[an accused person] is liable
on conviction to a term of
imprisonment of not less
than five years and not
more than twenty-five
year.”
The penalty for rape is
severe
Criminal Offences Act (Act 29)
Section 98: defines rape as “the carnal
knowledge of a female of not less than
sixteen years without her consent.”
 Carnal knowledge has been interpreted as referring to
sexual intercourse
NOTE:
According to this definition, only females can be raped
 The definition of rape does not distinguish amongst
women, but applies to all women above sixteen
Those under the age of 16 are protected by Section
101 and the crime of defilement for which the
consent of the victim is irrelevant
Criminal Offences Act (Act 29)
• Sections 14, 31(j), and 42 deal with CONSENT
• Section 14, Subsections (a) through (h):
circumstances under which consent is void
• Section 31: grounds on which the application of
force or harm against a person is justified
– Subsection (j): “Force may be justified in the case and in
the manner, and subject to the conditions provided for in
this Chapter, on the grounds [...] (j) of the consent of the
person against whom the force is used.”
How could Subsection 31(j) affect the
prosecution of cases of marital rape?...
... Sexual force or force used by a spouse against
his wife can be argued as justified on the basis of
consent of the wife to force used against her
• Subsection 42(g), ‘Use of force in case of consent”:
provides...
– “A person may revoke a consent which that party
has given to the use of force against that person,
and the consent when so revokes shall not have
effect or justify force”
The Law Before 2007:
• Section 42(g) read:
– “ a person may revoke any consent which he has given
to the use of force against him and his consent when
so revoked shall have no effect for justifying force;
save that the consent given by a husband or wide at
marriage, for the purposes of the marriage, cannot be
revoked until the parties are divorced or separated by
a judgement or decree of a competent court.”
This provision meant that a spouse could not, at any
time in a marriage, claim that she had revoked her
consent to sex.
What Problems Do You See
with the Law before 2007:
• Women are presumed to have consented to sexual
relations when married
• Women cannot revoke consent to forced sexual relations in
marriage without divorcing their husbands
• Even if a woman does leave her husband, consent to
forced sex is not deemed revoked under Section 42(g) until
a court rules that she is divorced (a man may rape his wife
even after she has fled from their home)
• Men/boys cannot be raped according to the definition set
out in Section 98
Are you satisfied with the state of the law
pre-2007? If not, what changes would you
like to see made to the law as it stood
before the 2007 reforms?
As a politician in 2007, what would you
have done to address these issues?
• How could you change the law?
• What obstacles would you face?
• What groups would oppose your proposed
law reform?
How did they change the law?
• The Domestic Violence Act’s original
bill included a specific prohibition of
marital rape
• Those opposed to a law on marital
rape argued that the development
would import foreign ideas into
Ghanaian culture
• “If we talk about marital rape, it
means we are going into the
bedroom, and we have no right to go
there” – Dr. Edward Mahama
• Parliament bowed to public pressure
and removed the provision
The Domestic Violence Act, 2007 (Act 732)
•
This Act developed out of a particular concern for the protection of women
and children from domestic violence
 Provides for both civil and criminal remedies
Part 1: Definition and prohibition of domestic violence
• Definition includes physical, sexual, economic, psychological violence and
sexual harassment.
• Section 4: “the use of violence in the domestic setting is not justified on the
basis of consent”
Part 2:
• Contains provisions for Protection Orders, under which the court can order
the perpetrator not to come within 50 meters of the victim, not to contact the
victim, or to vacate the matrimonial home
• Establishes a Victims of Domestic Violence Support Fund, made up of
voluntary contributions, to support victims of domestic violence
Part 3: Relationship of the Act to the Criminal Offences Act
• Where an Act committed within the domestic setting is an offence which
under the penal law attracts a sentence of more than three years, the police is
expected to bring the action under the Criminal Offences Act
What Criticisms might you have of the
Domestic Violence Act?
The intentions of the Act are laudable, but
implementation may be problematic:
• Problems with Protection Orders:
– Matrimonial homes are often perceived by family
members as the property of the man who may also be the
perpetrator
• Problems with the Victims Support Fund:
– Voluntary payments may not be forthcoming
– Criteria regarding who benefits from the fund has not be
set out and, because domestic violence is so widespread,
the pool of potential recipients is vast
Furthermore, There is still an exemption for
marital rape in the Criminal Offences Act!
• As an activist looking to abolish the
exemption for marital rape after the
passage of the Domestic Violence Act,
how would you have proceeded?
Removal of the Marital Rape Exemption &
the Admission it was Unconstitutional
• 2 months after the passage of the Domestic Violence Act, the
marital rape exemption under Section 42(g) was amended
through an indirect legislative process
• The government of Ghana appointed a Statute Law Revision
Commissioner to prepare a revised edition of all Ghanaian Acts
– The Commissioner submitted the set of revised laws to the
Minister of Justice and these laws were approved by
Parliament.
– Removed the marital rape exemption with an explanation
that the exemption was unconstitutional
Relevant Provisions of the Constitution
• Legal pluralism under Article 11
– Acknowledges the co-existence of statutory law
and a common law in Ghana which includes
customary law
• Chapter 5: Protects the fundamental human
rights and freedoms of every person in Ghana
– Article 15: “the dignity of all persons shall be
inviolable”. Denounces “torture or other cruel,
inhuman, and degrading treatment”
– Article 17: “All persons shall be equal before the
law”. No discrimination on grounds including
gender, ethnic origin, religion and social and
economic status.
– Article 26(2): “All customary practices which
dehumanize or are injurious to the physical and
mental well-being of a person are prohibited.
Arguing for/against the Constitutionality of
the Marital Rape Exemption
• Which of these articles would you use to make
for an argument about the unconstitutionality
of Section 42(g)?
• Could you form an argument defending the
original wording of 42(g)?
Article 11 and Customary Law
• There is no clear statement of customary law that indicates
support of domestic violence, including marital rape, However...
– In Ghanaian customary marriages, the husband is the head of the
household and his wife defers to his authority
– Many customary practices accept husbands “disciplining” their
wives for failing to follow directives
– A woman marrying under customary law is advised to be ready to
have sex whenever her husband wants to have sex
– The wife practice of dowry creates the impression that husbands
have bought and therefore own their wives
So... Customary sanctions do not tend to be enforced against
husbands who beat or rape their wives
Article 11 and Customary Law
• Family elders’ and community leaders’ handing of domestic
violence has shifted to the police and the formal justice
system with the passage of the Domestic Violence
Furthermore:
– Criminal law matters cannot be resolved under customary law,
and
– Article 26 of the Constitution states that “acts which are
repugnant to natural justice and morality” are superseded by
the Constitution
• However, Ghanaians predominantly live under customary
law and tend to choose to resolve issues in that forum
Problem with the new state of the law:
• The law now carries no explicit marital exemption
and a wife can revoke her consent to have sex
with her husband. But...
– Consent can still be used as a defence to marital rape
if a women is understood to have failed to revoke her
consent (onus appears to be on the woman)
– Given traditional tolerance of marital rape in Ghana,
the judiciary’s interpretation of a married woman’s
revocation of consent may be problematic
– UNCERTAINTY
Problems Relating to Consent
• A woman who wants to file a marital rape
complaint faces a society in which it is widely
understood that wives have agreed to
“perpetual consent” upon marriage
– Presumed state of consent does not make
meaningful the formal right to revocation of
consent provided under the law
Ascertaining Consent in Cases of Rape Generally
An examination of reported cases on rape in general with a focus
on consent, provides insight when considering the effectiveness of
the current laws regarding martial rape.
The following cases:
• State v. Gyimah [1963] 2 GLR 446.
• Republic v. Dapaah [1968] GLR 513.
• Hanson v. The Republic [1978] GLR 577.
All turn on the issue of consent
– Court relied on the extent of resistance put up by the complainant
to determine whether or not there was consent in a rape case
 This is problematic in cases where a complainant does not fight
back out of fear of the accused
– Court relied on whether or not the complainant’s version of events
was corroborated by witnesses.
 This is problematic in cases of marital rape as they are likely to
occur in the privacy of a home, without witnesses
The Problem of Spousal Privilege
• Section 110 of the Evidence Decree of Ghana, 1975, NRCD. 323
is titled Marital Communication and it states:
1.
2.
3.
A person has a privilege to refuse to disclose, and to prevent any other person
from disclosing, a confidential communication made between that person and
the spouse of that person during their marriage.
A communication is confidential if it is not intended to be disclosed, and made in
a manner reasonably calculated not to disclose its contents, to a third person.
This section applies to both monogamous and polygamous marriages.
• Spousal Privilege Rule: excludes evidence from one spouse against the
other spouse as a means of protecting martial relationships
– Inherited from the English common law, based on the ‘unity’ of spouses
– Some have challenged this rule in light of polygamy in Ghana, but this has not
yet been answered by the courts
Spousal Privilege Continued...
• If a wife cannot testify against her husband, this will pose a challenge
to testimony by a wife in the prosecution of marital rape cases.
How would you overcome this problem?...
• It could be argued that, in a marital rape case, spousal privilege in the
form of testimonial privilege cannot apply where one spouse is
charged with a crime against the other spouse. Although the purpose
of the privilege is to ensure confidence and harmony in a marriage,
ensuring the rights of a spouse against violence such as marital rape
would require making an exception to the rule.
– For example, spouses have been charged where they
have assaulted their other spouse
Ghana’s Obligation under
International Human Rights Law
International Covenant on Economic, Social, and Cultural Rights
(ICESCR):
• Article 2: The right to health and well-being
• Marital rape carried significant health consequences.
• Taking away a woman’s control over sexual relations takes away her
ability to protect herself from HIV/AIDS . Women subjected to
domestic violence, including rape are 3 times more likely to contact
HIV/AIDS.
• The ICESCR Committee noted in 2000, “[a] major goal [of State’s
parties] should be reducing women’s health risks, particularly lowering
rates of maternal mortality and protecting women fro domestic
violence.”
Ghana’s failure to criminalize marital rape contravenes
its international human rights obligations.
Achieving a full realization of the rights of married women:
Where do we go from here?
Assignment to be completed before the tutorial:
• In groups of 4-5, draft a legal strategy for
achieving full protection for Ghanaian wives
from marital rape
• We will workshop your strategies during the
tutorial
Some preliminary ideas...
Litigation
Removal of the marital rape exemption has
occurred recently, this provides an
opportunity for test litigation
A court ruling on the provision as it now
stands would be useful in resolving the
current uncertainty in the law
Law Reform
Clearly criminalize marital rape
Ensure the issue of consent does not maintain the
status quo
Considering the Procedural and Evidentiary
aspects of marital rape prosecutions
Ensure these aspects of the trial process do not
frustrate successful prosecutions
Public Education
• The rights of married women cannot be fully
realized unless these women understand and
prosecute their rights
• Public Education may include:
• Radio dramas, Television programmes, Postering,
Presentations, Texting (SMS)
 What sort of creative ways could you use the
internet, SMS, social networking or other modern
technologies to educate or activate the public?
Protecting Mothers, their Children, and our Future
By denying Ghanaian wives the full protection of their most basic
human rights, we deny them the ability to enjoy full citizenship.
By protecting women from violence, we protect their health which,
in turn, supports the well-being of their children and their
communities.
“Poverty reduction and gender inequality are inextricably linked”
– Ellen Johnson Sirleaf
Empowering the wives and other women of Ghana through the full
protection of the law is an important step in the economic and
social development of the country.