Section 14 of Chapter 2 of the Ghanaian Criminal Code provides the definition of consent. It states that consent is void if the person giving it is under years.12 of age, or in sexual offences under 16 years of age Consent is void if the person is insane, immature, intoxicated, or is as a result of any other cause unable to understand the nature or consequences of the act to which he consents. Consent is void if obtained (i) under duress or by means of deceit; (ii) by undue influence; or (iii) given on behalf of a parent or guardian in bad faith or (iv) by reason of a fundamental mistake of fact or (v) if actual authority to consent is not present. Consent is considered to have been obtained by the preceding causes if consent would not have otherwise been given but for those causes. A person should not be prejudiced by the invalidity of any consent if he did not know and could not have known of the invalidity by exercise of reasonable diligence.
Women and Justice: Keywords
Legislation
Ghana Criminal Code Chapter 2, Section 14 (Provisions relating to consent) (1960)
Domestic Case Law
Sawyer-Thompson v. The Queen Supreme Court of Victoria Court of Appeal (2018)
After pleading guilty to defensive homicide and being sentenced, the applicant appealed her sentence. The applicant’s violent and abusive partner, Mr. Mifsud, had compelled the applicant to kill the victim, Mr. Nankervis, by threatening to kill her family unless she killed Mr. Nankervis. The sentencing judge described the applicant’s offense as a “very grave example” of defensive homicide on the basis that Mr. Nankervis was innocent, Mr. Mifsud was absent at the time of the killing so the applicant could have gone to the police, and because the attack on Mr. Nankervis was extremely violent and disturbing. However, on appeal, the Court of Appeal found that the sentence (10 years imprisonment) imposed by the judge was manifestly excessive. The Court of Appeal had regard to the litany of cruel, humiliating, and violent acts that Mr. Mifsud had subjected the applicant to throughout their 12-month relationship, and Mr. Mifsud’s substantial criminal history. The Court of Appeal also considered the applicant’s youth (she was 19 at the time of the offense), her contrition in pleading guilty, and the effect of the violence on her state of mind, which made it “exceptionally difficult” for her to resist the requests of those in positions of influence. The Court of Appeal found that there was no basis for drawing an adverse inference from the disproportionate violence used to kill Mr. Nankervis. Instead, against the background of family violence, the violence was indicative of the applicant’s fear that Mr. Mifsud would kill her family.
People of the Philippines v. Napoles y Bajas Supreme Court of the Philippines (2017)
The appellant was found guilty of raping his stepdaughter AAA six times by the Regional Trial Court and the Court of Appeals. As a result, AAA gave birth to a baby in 2001. On appeal, the appellant argued that the prosecution failed to prove his guilt beyond reasonable doubt, stating that (1) there was no sign that AAA was outraged and defended her honor with courage and (2) of the three instances of intercourse he admits to, such instances were consensual and between lovers. The Supreme Court dismissed the appeal for the following reasons: (1) victim’s failure to shout or offer tenacious resistance does not mean the victim was consenting, and victim’s physical resistance is not an element of proving rape, and (2) a romantic relationship does not negate rape. The required elements of rape under Article 266-A of the Revised Penal Code, (I) accused had carnal knowledge of the victim and (II) accomplished the act through force or intimidation, or when the victim was deprived of reason or unconscious, or under age 12, or demented. The court found that the prosecution proved all elements by providing: AAA’s credible testimony, the results of AAA's medical examination, the appellant's use of a knife and bolo to threaten physical violence, and his moral influence as stepfather over AAA. The court sentenced the appellant to reclusión perpetua and ordered him to pay P225,000 in moral damages, civil indemnity, and exemplary damages to AAA.
Nadeem Masood v. The State Lahore High Court (2015)
The appellant arrived at the respondent’s home armed with a pistol and raped her. The respondent, 16 years old at the time, was already 32 weeks pregnant with the appellant’s child due to multiple previous rapes. The respondent filed a suit against the appellant and gave birth to a daughter during the trial. The Trial Court found the appellant guilty and sentenced him to 20 years of imprisonment, to which he appealed to the Lahore High Court. Under the criminal laws of Pakistan, it is rape when a man has sexual intercourse with a woman with or without her consent when she is 16 years old or under. It is also rape when a woman gives consent due to fear of death or being hurt. The appellant argued the lesser offence of fornication, which is a crime committed when two people have sexual intercourse outside of marriage. The appellant argued that the Trial Court should not have convicted him of rape as the respondent had consented to the sexual intercourse. The offence of fornication is only punishable by imprisonment for up to five years with a maximum fine of ten thousand rupees, whereas rape is punishable by imprisonment for up to 25 years and/or a fine. The High Court held that since the respondent was 16 years old at the time of rape, it qualified as rape irrespective of the respondent’s consent. The High Court also expressed its concern over the Trial Court’s failure to award compensation to the child. Notably, the High Court held that children born because of rape would suffer “mental anguish and psychological damage” for their entire life, and should, therefore, be entitled to compensation. The appellant was ordered to pay a fine of one million rupees to the child born as a result of the rape, in addition to the compensation payable to the respondent.
S (CA338/2016) v. The Queen Court of Appeal of New Zealand (2017)
Appellant (who was 38 years of age at the time of the offences) appealed a sentence of imprisonment for kidnapping, disfiguring with intent to injury and wounding with intent to injure the complainant (who was 17 years of age at the time of the offences). The complainant and appellant began a relationship after the complainant left the care of Child, Youth and Family (Ministry for Vulnerable Children). The appellant accused the complainant of sexually assaulting his daughter. As punishment for the sexual assault and a condition for continuing their relationship, he convinced the complainant to allow him to break her finger with a rock. He subsequently subjected the complainant to other physical abuse, after which she fled to a neighbor for help. The appellant argued at the Court of Appeal that a High Court Judge had wrongly withheld the defense of consent on the charge of wounding with intent to injure. The Court dismissed the appeal and concluded that it was possible to eliminate the defense of consent depending on the specific facts of the case. In this case, the Court found it permissible to eliminate the defense of consent because of the power imbalance between the parties, the fact that the complainant acquiesced because of a threat to their relationship, the gravity of domestic violence, and the severity of the injury.
KKO 2013:96 Supreme Court of Finland (2013)
The issue here was related to the evaluation of evidence and the question whether the sexual intercourse in question was coerced. In this case, A and X had engaged in sexual intercourse which, according to A’s testimony, she was coerced into following physical approaches and violence by X, the male defendant. A had asked X to stop the approaches and attempted to resist him both physically and verbally. X had not complied but instead continued to engage in sexual conduct. A contended that due to the distress and fear caused by the events and the fact that she was physically significantly smaller than X she was no longer able to resist X’s approaches. A stated that the only thing she could think about at that point was that she did not want to get a sexually transmitted disease from X and, therefore, handed X a condom for him to use. After this, A and X had sexual intercourse. X contended that the intercourse was consensual. X further claimed that he could not have understood, in particular after A had given him a condom, that he was coercing A to have sexual intercourse. In its evaluation of the evidence, the Supreme Court stated that it held A’s description of the events reliable as her account was supported by the facts presented to the Court and since X’s description of the events had changed during the process, thereby reducing his credibility. X had, however, further claimed that even if the description of events given by A was accurate, the elements of the crime of coercion into sexual intercourse were not present in the case. As set forth in Section 3 of Chapter 20 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), the crime of coercion into sexual intercourse is a rape that, in view of the slight degree of violence or threat of violence and the other particulars of the offence is deemed, when assessed as a whole, to have been committed under mitigating circumstances. The elements of rape under the Criminal Code include the requirement that a person forces another person into sexual intercourse by the use or threat of violence, and the Court affirmed that a breach of the victim’s right of self-determination is central to this requirement. The Court held that A had resisted X’s actions but had been coerced into sexual intercourse by X through the use of violence and the resulting fear and helplessness that A experienced. The Court further held that the fact that a victim ceases to resist, physically or verbally, an offender’s approaches cannot be interpreted as inferred consent to sexual intercourse by the victim. More specifically, the Court stated that even if the offender assumed that the victim had changed her mind, this does not remove intent on the part of the offender absent such change of mind being clearly expressed by the victim. The Court held that A’s handing over the condom, under the circumstances that this event took place, did not constitute such expression of a change of mind. Therefore, the Supreme Court held that there was sufficient evidence to prove X guilty of coercion into sexual intercourse. X was sentenced to 10 months of probation and to pay damages to A.
RH 1991:120 The Court of Appeal for Western Sweden (1991)
["A person who, otherwise than as provided in Section 1 first paragraph (Author's note: rape), induces another person by unlawful coercion to undertake or endure a sexual act, shall be sentenced for sexual coercion to imprisonment for at most two years. (…)" Chapter 6, Section 2 of the Swedish Penal Code.] A woman was repeatedly forced, without the use of physical violence, to have sexual intercourse with her husband. In one instance the man tried to pull off the woman's pants after she had said that she did not want to have sexual intercourse with him. He then threatened her by saying he would forcibly open up her legs if she continued to refuse and twisted the woman's ankle, causing her substantial pain, as he attempted to keep her on the bed. The woman managed to run away from the bedroom and hold on to the door handle, thus making her husband unable to reach her. Instead, the man masturbated in front of the woman and then calmed down. The District Court found that in order to achieve sexual intercourse with the woman, the husband had used violence and threats. The woman had suffered pain, an injury to one foot, and probably also some bruising to her legs. The District Court found that the violence and the threats used could not be considered graver than those comparable to the coercion requirements in Chapter 6, Section 2 of the Swedish Penal Code and sentenced the husband to imprisonment for attempted sexual coercion. The Court of Appeal for Western Sweden upheld the District Court's ruling.
Egglestone v. The State Supreme Court of Appeal (Hoogste hof van Appèl) (2008)
A high school teenage girl from an impoverished neighborhood consented to undergo job training as a receptionist at the appellant's escort agency. She alleged that during her training, the appellant held her against her will, and raped and sexually assaulted her. The appellant argued that his conviction should be overturned because the victim had consented. The court dismissed the kidnapping charges, but upheld the rape and sexual assault charges. The court acknowledged that although the victim consented to parts of the training (i.e. wearing lingerie and taking up residence at the employer's compound), she did not consent to sexual intercourse with the appellant. The court also noted that because of the appellant's age (twice that of the victim) and his promise of employment, he exercised a dominant position over the victim that made it difficult for her to refuse his advances.
'n Tienermeisie op hoërskool uit 'n verarmde woonbuurt het toegestem dat sy as ontvangsdame by die escort-agentskap van die appellant werksopleiding sal kry.. Sy beweer dat appellant haar tydens haar opleiding teen haar wil vasgehou het, en haar verkrag en seksueel aangerand het. Die appellant het aangevoer dat sy skuldigbevinding omgekeer moet word omdat die slagoffer toestemming gegee het. Die hof het die aanklagte van ontvoering van die hand gewys, maar die aanklagte van verkragting en seksuele aanranding bevestig. Die hof het erken dat hoewel die slagoffer toestemming gegee het vir dele van die opleiding (d.w.s. om onderklere aan te trek en in die werkgewer se verblyf in te woon), sy nie tot seksuele omgang met die appellant toestem het nie. Die hof het ook opgemerk dat weens die ouderdom van die appellant (twee keer die van die slagoffer) en sy belofte vir indiensneming ,'n dominante posisie oor die slagoffer uitgeoefen het, wat dit vir haar moeilik gemaak het om sy aanvoeringe te weier.
Reports
Report by Human Rights Watch documenting acts of violence, harassment, and threats against women in Chechnya to intimidate them into wearing a headscarf or dressing more "modestly."