THE QUESTION OF CONSENT

Jul 15, 2009 Features / Columnists, Peeping Tom

There are a number of legal issues that keep popping up in relation to sexual offences within our society. Some of these are matters that are constantly being discussed before the court, within the legislature and within society. This column provides an opinion on one of them: the highly contentious concept of statutory rape.
Rape is said to occur when someone engages in sexual intercourse against another without valid consent. Strong and persuasive arguments are being made to extend this definition to include sexual offences other than sexual intercourse done without consent.
These arguments need to be taken seriously if rape is to be successfully prosecuted.
There are two important principles involved in determining whether rape has been committed. The first is that there must have been an act rather than a mental intention to commit an act.
Thus it can be argued that statutory rape is not a cognitive offence; it is not a crime of thought; there must be an act physically carried out without valid consent.
Secondly, this act must be committed against the consent of the person against whom it is directed. Not all acts of consent are valid. There are certain categories of persons vulnerable to abuse and thus require protection in that they are not deemed to be capable of granting consent. Thus, young children cannot be said to grant consent.
This is why there is an offence called statutory rape in that it matters not whether the person consents to a sexual act, so long as the person is underage, an act of statutory rape is said to have been committed. Similar protection needs to be afforded to the mentally handicapped. In such instances, consent is not valid.
Consideration also needs to be paid to rape within marriages for there are many relationships in which sexual intercourse takes place out of obligation and is not always freely and voluntarily given.
Certainly here, there is need for legal clarity as to what constitutes valid consent within marriages.
Within some traditions, a woman will not consent to sex outside of a matrimonial relationship, the fact that such a woman may have been falsely under the impression that she was married when in fact she was not, would NOT lend itself to a crime of statutory rape so long as consent was granted and provided that such consent is valid.
Rape as we know can be committed both outside of a marriage as well as within a marriage. A husband who forces himself on his wife can be charged with rape in the same manner as someone can be charged for rape without knowing the victim.
It does not matter whether the victim was deceived into consensual sex such as through a promise or through a false assumption.
The concept of consent within common law is however not straightforward. What constitutes consent and the distinctions between direct and implied consent have been argued for centuries within courts.
It is important therefore that those involved in the passage and enforcement of sexual offences legislation be familiar with the important elements and arguments that have arisen about consent in the many cases which have been tried before local and external courts, for nothing can dent the newly-won confidence in sexual offences legislation than someone being freed on charges of rape, based on technical arguments about whether there was implied consent.
For this reason alone, one would have hoped that there would have been a greater public education programme prior to the tabling of sexual offences legislation.
This public education programme would have been important on a number of counts. For one, it would have explained to the public the existing state of affairs as regards present legislation.
Secondly, it would have introduced them to what are the requirements under law to prove rape and the many sided issues of consent. This would have allowed for a more far-reaching debate as to the necessary changes which needed to be made.
It is however conceded that the high incidence of sexual offences within our society demands that urgent action be taken to update our legislation so as to afford greater protection especially for our women, the prime victims of statutory rape.
In this regard, accommodation should be made for continuous review and updating of legislation. One additional suggestion should be considered. There should be established a law review committee (not commission) comprising of members of the National Assembly to deal specifically with future amendments to our laws as experience dictates.

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THE QUESTION OF CONSENT

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