Notwithstanding the vast publicity in the print and electronic media about rape and carnal abuse, the practice continues unabated. In some of these situations, one gets the feeling that sometimes both the accused person and the complainant are victims.There might be need to put carnal abuse awareness on the national agenda by having a national carnal abuse awareness day where all the schools, churches and the thousands of community organisations can get into the act of educating the young and the old alike about ridding or reducing significantly this crime in our society. In the interim, let me say a few words about rape and carnal abuse.
Rape is contrary to common law but the penalty is provided at Section 44 of the Offences Against The Person Act (hereinafter called 'the Act'), which provides that: "Whoever shall be convicted of the crime of rape shall be guilty of felony and being convicted thereof, shall be liable to imprisonment for life."
In light of the above, it might be useful to consider what is rape. In law, sexual intercourse is required to prove rape. This means penetration and so even the slightest degree of penetration will suffice. In addition, it is important to note that the hymen need not be ruptured and no emission of seed is required.
The law, as I understand it, is that a girl under 16 cannot consent but if the girl is over 16, the crown would seek to show that at the time of the sexual intercourse the man knew that the girl did not consent or he was reckless as to whether the girl consents or not.
Life imprisonment
Sections 48 and 50 of the Act deals with what is commonly called carnal abuse. Section 48 provides for life imprisonment for those convicted for carnally knowing and abusing a girl under 12 while Section 50 states: "Whosoever shall unlawfully and carnally know and abuse any girl being above the age of 12 years and under the age of 16 years shall be guilty of a misdemeanour and being convicted thereof, shall be liable to imprisonment for a term not exceeding seven years". This section also provides what is commonly called the statutory defence in which provides that: "In the case of a man of 23 years of age or under, the presence of a reasonable cause to believe that the girl was over the age of 16 years shall be a valid defence on the first occasion on which he is charged with an offence under the section."
Generally, It is true that presence without more is not enough to ground a criminal conviction. However, others present and who are not considered as principal, depending on their participation, may be charged as accessories, in that they aid, abet, counsel or procure the commission of the crime.
If penetration is not proved, the offenders may be convicted of indecent assault contrary to common law. However, the penalty for this offence is outlined at Section 53 of the Act, which provides that: "Whosoever shall be convicted of any indecent assault upon any female, or of any attempt to have carnal knowledge of any girl under 16 but not under 12 years of age, shall be liable to be imprisoned for a term not exceeding three years, with or without hard labour. Consent by a girl under 16 to this offence is not a defence.
The law is clear but securing convictions does not always solve the problem although on the books it might be said that the crime is solved. As a nation, we must change our mindset of these crimes by providing greater awareness of the dangers to all parties concerned. A national day to focus on rape and carnal abuse will focus on the mindset and help to defeat the monster.
Keith N. Bishop is an atorney-at-law and partner in the law firm of Bishop & Fullerton. He may be contacted by email at knb@bishopfullerton.com.
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