Legal Eagle : Redefining rape

February 06, 2017

There is fresh debate in the media about a recommendation by the United Nations to widen the definition of rape to include anal penetration and placing the penis in the mouth of a victim. The question is whether or not this proposed widening of the definition of rape is necessary.

Rape is generally described, at common law, in most jurisdictions as sexual intercourse by a man with a woman without her consent. The law is that even the slightest penetration will suffice and there is no need for the emission of semen.

Consistent with this universal definition of rape, Section 3 of The Sexual Offences Act, 2009 provides that a man commits the offence of rape if he has sexual intercourse with a woman without her consent and knowing that she doesn't consent to sexual intercourse or recklessly not caring whether she consents.

If the recent newspaper articles are correct, the United Nations is recommending an expansion of the definition of rape to include the penetration of the anus and placing the penis in the mouth of a victim.

Under the Act, the word 'rape' is not used in Section 4, but what is known under the Act as grievous sexual assault is committed upon another person where, in the circumstances specified in Section 3 of the act, the offender penetrates the anus or vagina of the victim with a body part other than the penis or an object manipulated by the offender or another person. The offender also commits grievous sexual assault if he places his penis in the mouth of a victim or causes another person to place his penis in the mouth of the victim.

According to the act, a person who is convicted of rape is liable on conviction in a circuit court to imprisonment for life, while a person who is convicted of grievous sexual assault is liable on summary conviction in the parish court for a term not exceeding three years, and on conviction in the circuit court, to imprisonment for life or other penalties in the discretion of the judge, but not less than 15 years.

With respect to anal penetration, Section 76 of the Offences Against the Person Act provides that whosoever shall be convicted of the abominable crime of buggery shall be liable to imprison for a term not exceeding 10 years.

 

BUGGERY

 

What is clear is that there is sufficient provision in law to punish any offender who places his penis in the mouth of a victim or causes a penis to be placed in the mouth of a victim or anyone who committed buggery. Therefore, if buggery is committed during the same time with rape and also by placing the penis in a victim's mouth, the prosecution can have these offences tried and disposed of without any prejudice to the offender.

In light of the above, there seems to be no good reason to expand the definition of rape to include buggery and placing a penis in the victim's mouth in light of the fact that both offences are already adequately punished in law. What is important is to ensure that any breach of the law is suitably punished.

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