Criminalisation of Marital Rape; Situation in Ghana after a decade
Exactly a decade ago, on February 21, 2007, Ghana made a decision on the proposed criminalisation of marital [determined] rape spearheaded by the National Coalition on Domestic Violence Legislation (NCODVL) and some key individuals.
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Although the Domestic Violence Act does not explicitly mention marital rape, the act is linked to the Criminal Offences Act (revised in 2007) under which marital rape is an offence in Ghana.
Marital rape is criminalised in pursuant to the repeal of section 42 (g) (of Ghana’s criminal code, 1960 (Act 29) by the Statute Revisions Act. Under section 32 of the Domestic Violence Act, an act committed within the domestic setting is an offence, which attracts a sentence of more than three years imprisonment.
The proposal for criminalising marital rape was engulfed in an unprecedented controversy and rancorous contention; although not surprising. The acrimony that came along with the proposal tells how strange it is to Ghana’s socio-cultural and religious leanings.
As much as African nations lauded the developmental progress of Western nations, criminalising marital [determined] rape was not what they had appetite for and would want to copy from them.
Bone of contention
The Domestic Violence Act (DVA): Section 42 (g) which stated: “…consent given by a husband or wife at marriage for the purposes of marriage, cannot be revoked until the parties are divorced or separated by a judgement or decree of a competent court,” compromised marital rape and was the bone of contention.
This Act irrevocably exempted spouses from criminal liability for perpetrating abusive non-consensual sexual acts in marriage. Ultimately, this Act compromised the perpetration of all manner of heinous domestic violence.
A human rights advocate, Nana Oye Lithur, explained that although marital rape was not explicitly criminalised in Ghana, spouses stood to face prosecution without fear or favour when they came face to face with the law as explicated below:
“Although the Domestic Violence Act does not explicitly mention marital rape, the Act is linked to the Criminal Offences Act (revised in 2007) under which marital rape is an offence in Ghana… Marital rape is criminalised in pursuant to the repeal of section 42 (g) by the Statute Revisions Act. Under section 32 of the Domestic Violence Act, where an act committed within the domestic setting is an offence.
A decade on
However, it comes as no surprise that much as human beings seek redress and justice, 10 years on after the criminalisation of marital rape in Ghana, there is no empirical evidence from the Domestic Violence and Victim’s Support Unit (DOVVSU) of the Ghana Police Service of such a case.
Ten years on, a spouse is yet to bell the cat. Is it that intimate parters are not sexually abused? Covertly and overtly, the Ghanaian’s socialisation does not impart the recognition of such acts as criminal, neither did the law.
The 42 (g) described as compromising by gender advocates gave husbands the privilege to have non-consensual sex and that gave rise to advocacy and persistent calls for its repeal and replacement with a proposed Section 1(b) (ii).
The recommended replacement was worded thus: "Sexual abuse, namely the forceful engagement of another person in any sexual contact whether married or not, which includes sexual conduct that abuses, humiliates or degrades the other person or otherwise violates another person’s sexual integrity whether married or not, or any sexual contact by a person aware of being infected with HIV or any other STD with another person without the other person being given prior information of the infection.”
Nonetheless, bone of contention, Section 42 (g) was amended but not replaced because the advocates proposed a replacement but Parliament amended it but did not replace it, and this least excited the advocates because to them, it did not serve the purpose because of its implicit nature.
Subsequently, in order to drown the deafening hullabaloo that accompanied the dissatisfaction expressed by the advocates for the implicit criminalisation of marital rape, the amended law was repealed in June 2007 by Justice VCRAC Crabbe.
Nationwide research
The findings of a nationwide research that asked respondents specifically “if their partners forced them to have sex sometimes, over one in four (28.3 per cent) women affirmed that they are forced”, reports Aniwa, M. (1999), and also in K. Cusack, & D. Coker-Appiah (Eds.), Breaking the Silence and Challenging the Myths of Violence Against Women and Children in Ghana, as well as the Gender Studies & Human Rights Documentation Centre, Accra. (67-71).
This suggests that over the years and now, intimate sexual abuses in Ghana have been successfully shelved.
Personally in doubt of abusive sexual acts in marriage when I first got to know in my post-graduate deviance class, I researched and the findings made me bow my head in shame; it is a ‘tell it not’ issue. An indication that sexual abuse constitutes a tip of an iceberg of stratified gender-based violence.
Due to an extreme sense of shame, stigmatisation and humiliation, it is difficult for the disclosure of the existence of rape by an intimate partner even under anonymous circumstances. It is, therefore, apparent that though a necessary evil, criminalisation of marital rape is insufficient to deter perpetration and a means of resolving sexual abuse disputes.
Without a shadow of doubt, marital rape has been conceptualised as a Western issue, despite the numerous advocacies that had aimed at re-orienting the Ghanaian on the right to one’s body autonomy, even in marriage.
The westernised notion of non-consensual sexual acts in marriage as rape has become possible because of Ghanaian gender-based beliefs and value systems.
Non-consensual sexual
So far, legislation has failed to empower spouses to report abusive non-consensual sexual acts in marriage for prosecution.
Differing from “crime-minded approaches”, I argue that the criminalisation of marital rape alone will hardly serve as a remedy for women’s sexual abuse emancipation whether in or out of marriage. There is, therefore, an urgent and great need for re-orientation (education) of the Ghanaian on the demerits of abusive sexual acts.
Adopting the Pavlovian theory of “classical conditioning”, education (preventive) should be the conditioned stimulus that deters perpetration of sex crimes and not prosecution (curative) unconditioned stimulus.
Without education, human beings will live their lives by assumptions; taking everything for granted. Perpetrators of sex crimes may have ways of escaping from the grip of the law, if even they are brought to book.
Purposefully, the Ghanaian educational curricula must incorporate sex education at all levels from primary to the tertiary level. The curricula must be littered with examinable subjects on gender-based violence, regardless of the area of study, just as African Studies at the university level is a partial requirement for certification.
Instruction manuals
From the primary to the secondary level, the physical education curriculum must incorporate instruction manuals on the recognition and prevention of sexual abuse. Self-defence lessons then must imperatively be a part of the physical educational instructions.
Government-approved text and exercise books for all subjects could have teasers of sexual abuse recognition and prevention at the back just as mathematical tables can be found at the back of some exercise books.
Teacher training colleges must incorporate sexuality education in their syllabi. The institution must train their trainees to first of all be law-abiding citizens because some teachers sexually abuse their pupils and students who because of shame and ignorance are unable to report the abuse. As a responsibility, teachers must be empowered to teach safe sexuality.
The writer is a criminologist cum industrial sociologist affiliated with the Trinity Loving Care Foundation (TLC), a non-governmental organisation that advocates children’s sexual health and rights.
