Reforming the Criminal Law to Protect Rights

1. Reforming the Criminal Law to Protect Rights The Case of Marital Rape in Ghana Making Home a Safe Place

2. 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

3. Since 2007, reforms have been made to Section 42(g) of the Criminal Offences Act. In this lecture, we will explore: • 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

4. 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

5. 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)

6. 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

7. 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

8. 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

9. 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 101and the crime of defilement for which the consent of the victim is irrelevant

10. 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.”

11. 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”

12. 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.

13. 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

14. As a politician in 2007, what would you have done to address these issues? 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? • How could you change the law? • What obstacles would you face? • What groups would oppose your proposed law reform?

15. 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

16. 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

17. 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

18. 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?

19. 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

20. 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.

21. 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)?

22. 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

23. 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

24. 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

25. 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

26. 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

27. The Problem of Spousal Privilege • Section 110 of the Evidence Decree of Ghana, 1975, NRCD. 323 is titled Marital Communication and it states: • 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

28. 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

29. 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.

30. 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...

31. 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

32. 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

33. 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?

34. 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.