Defilement as a Sexual Offence in Ghana:
Introduction:
Defilement is a sexual offence in Ghana involving children of less than 16 years of age. The offence will be discussed in this note in terms of its meaning, elements, and prescribed punishment.
Meaning and Elements of Defilement:
According to section 101(1) of the Criminal Offences Act, 1960 (Act 29), “defilement is the natural or unnatural carnal knowledge of a child under sixteen years of age”.
From the provision in section 101(1) of Act 29, the following are the requirements of the offence of defilement:
1. There must be natural or unnatural carnal knowledge of a child.
2. The child must be below the age of sixteen.
In the case of Asante v. the Republic (J3 7 of 2013) [2017], the Supreme Court of Ghana acknowledged the following as the elements or ingredients of the offence of defilement:
1. That the victim is under the age of 16 [as provided for in the Criminal Code (Amendment) Act, 1998 (Act 554)].
2. Someone had sexual intercourse with her;
3. That person is the accused.
These elements were similarly stated in the case of The Republic v. Yeboah [1968] GLR 248-256 .
Criminalization of Defilement:
According to section 101(2) of Act 29,
A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of the child, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less that seven years and not more than twenty-five years.
Differences Between Rape and Defilement:
1. Age:
For the offence of rape, only a female of 16 years of age or older can be said to have been raped. Consequently, sexual intercourse with a female who is less than 16 years old cannot be termed rape, even if she was forced into the act.
For the offence of defilement, only a child of less than 16 years can be said to have been defiled. Consequently, sexual intercourse with a female of 16 years or older cannot be termed defilement, and again, sexual intercourse with a child of less than 16 years cannot be termed rape even if the child was forced to have sex against their will.
Given the inclusion of age as an ingredient for the offence of defilement, the prosecution would have to prove that the complainant or victim was under the age of 16, and failure to do this may lead to the acquittal of the accused, especially when the accused challenges the age of the complainant. If the age of the complainant is not in dispute, the Court may proceed without interrogating the age of the complainant. In the case of Asante v. the Republic (supra) , for instance, the Supreme Court noted that the
Appellant had attacked the finding of the court below that the prosecution had sufficiently proved that the victim was aged below 16 years. However, he abandoned that ground in arguing the appeal in his statement of case so we accordingly strike it off
If an accused agrees that the complainant is below the age of 16 years, the Court, as it did in Asante v. the Republic (supra), may hold the element of age sufficiently proved.
2. Gender:
In defining rape, section 98 of Act 29 specifically limits rape to carnal knowledge with a “female” instead of using the more expansive term, “person”. Consequently, only a female can be raped in Ghana.
However, in defining defilement, section 101(1) of Act 29 uses the expansive term “child”, thereby leading to a widely held view that “child” refers to both a male and a female child and consequently recognizes that both boys and girls can be defiled.
3. The Element of Consent:
Unlike in rape where the consent of the complainant is a complete defence, the consent of a child in defilement is completely immaterial. In the case of Republic v. Yeboah (supra) for instance, the accused had sexual intercourse with a nine-year-old girl who failed to report the incident or disclose it to anyone until after a week. The Court was of the opinion that her non-disclosure was somewhat indicative of her consent to sexual intercourse with the accused. It was held that despite her consent to sexual intercourse with the accused, he was still guilty of defilement pursuant to section 101 of Act 29 . In any case, section 14(a) of Act 29 specifically mentions that the consent of a person under the age of 16 years for the purposes of sexual intercourse is void.
4. Natural or Unnatural Carnal Knowledge:
Rape involves having carnal knowledge of a female of 16 years or older without her consent. The Court, in both Gligah & Atiso v. the Republic [2010] SCGLR 870 and Banousin v. the Republic (J3 2 of 2014) [2014] has interpreted carnal knowledge to mean penetration of the vagina by the penis. Consequently, a female cannot be said to have been raped if a male penetrates her anus with his penis.
In defining defilement, section 101(1) of Act 29 mentions both natural and unnatural carnal knowledge of a child. It is understood that the inclusion of unnatural carnal knowledge in the definition of defilement is what makes it possible for a boy, who obviously has no vagina, to be considered defiled when his anus is penetrated by a penis. Summarily, a female child (under the age of 16) is said to have been defiled if her anus or vagina is penetrated by a penis, and a male child (under the age of 16) is said to have been defiled if his anus is penetrated by a penis.
5. Punishment and Criminalization:
According to section 97 of Act 29 , 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.
According to section 101(2) of Act 29 , “A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of the child, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less than seven years and not more than twenty-five years.”
Meaning of Carnal Knowledge:
In the case of Gligah & Abdulai Atiso v. The Republic (supra) , the Justices of the Supreme Court provided the following definition of carnal knowledge:
Carnal knowledge is 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.
Similarly, in the case of Banousin v. The Republic (supra), the Justices of the Supreme Court also stated that "it is the female sex organs called the vulva and vagina that are normally penetrated into during any sexual act which can qualify to be carnal knowledge under sections 98 and 99 of Act 29".
Meaning of Unnatural Carnal Knowledge:
In section 104(2) of Act 29 , it is provided that “unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or, with an animal”
Proving Carnal or Unnatural Carnal Knowledge:
According to section 99 of Act 29,
Where, on the trial of a person for a criminal offence punishable under this Act, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or unnatural carnal knowledge is complete on proof of the least degree of penetration.
To prove that there was a penetration of the vagina or anus of a female child of less than 16 years of age, or that there was a penetration of the anus of a male child of less than 16 years of age by the accused, the prosecution may, among others, rely on the submissions of the complainant, corroborative evidence, medical reports, and DNA evidence, if carnal knowledge of a female led to pregnancy [see Asante v. the Republic (supra)
If the prosecution is relying on the submissions of the complainant, it is essential that the credibility of the complainant is not tainted by false information. In the rape case of Banousin v. the Republic (supra) for instance, the complainant stated that she was a virgin prior to being carnally known by the appellant, but medical evidence proved her hymen had long been broken prior to the date of the purported rape. She was not considered a credible witness, and this partly led to the acquittal of the accused. In the defilement case of Asante v. the Republic (supra) , the complainant, a 14-year-old girl, was found to have been pregnant, and she claimed the appellant was responsible since she never had sexual intercourse with anyone other than the appellant. DNA reports proved otherwise, and her credibility was questioned. The Supreme Court stated:
The import of the DNA evidence is that the victim was not truthful when she testified on oath that it was appellant who had sexual intercourse with her leading to the pregnancy and that has legal implications including her credibility as a witness…
Why did the victim fabricate a false story and repeat it on oath that her pregnancy was caused by the Appellant? Did she really have any sexual intercourse at all on 12/11/2003? The totality of the evidence leaves a reasonable doubt in the mind of the court as to whether on or about 12/11/2003 the victim engaged in sexual intercourse at all and with the appellant in particular and we are bound by law to resolve that doubt in favour of the appellant…
The fact that the girl was the sole witness to the purported sexual intercourse between herself and the appellant, and the absence of any medical evidence such as the presence of his semen in her vagina, raised reasonable doubts as to whether the appellant had carnal knowledge of the complainant.
In the case of Republic v. Yeboah (supra) , however, the prosecution was able to establish that the accused had carnal knowledge of the victim because the accused was found to have chronic gonorrhoea, and medical reports showed that the victim had been infected with the disease. Two friends of the victim also confirmed that the victim entered the room of the accused and the accused consequently admitted that the victim entered his room. These pieces of evidence, referred to as corroborative evidence, led the court to convict the accused despite his denial that he had had no carnal knowledge of the victim.
Conclusion:
This note examined the meaning of defilement, its elements, and how the offence of rape differs from the offence of defilement.