Prologue: Defiling a mother of twins

In a village called Asratoa, it is a serious criminal offence to have sex with a boy or girl below the age of sixteen (16) years. Anyone who violates this law is liable to be imprisoned for a minimum of seven (7) years and a maximum of twenty-five (25) years.

Akonobea, the only daughter of the Odikro, Nana Sasraku, gave birth to twins at the age of thirteen (13) and dropped out of school. As the boy who impregnated Akonobea was her close relative, the elders of the family dissolved the relationship, but took no action against him. Two weeks after Akonobea’s fifteenth birthday party, Okyeame Sasraku took custody of the twins to enable
Akonobea to return to school. While in school, Akonobea and her English teacher, Sir John, fell in love.

Their sexual relationship was too open to be doubted. Sir John regularly bought confections for Akonobea’s children. Fearing that Akonobea’s intimate relationship with Sir John may disrupt her education, Okyeame Sasraku reported a case of defilement of his fifteen- year old daughter against Sir John at the Asratoa Police Station. Both Akonobea and Sir John admitted their sexual relationship in their statements to the police.

You are the sitting Magistrate at the Asratoa Family Tribunal. Would you convict and sentence Sir John to serve a minimum of seven years imprisonment according to law? How would your sentence work on your own conscience?

Introduction

A cardinal feature of Ghanaian criminal law is that the lawmaker fixes mandatory minimum and maximum sentences for certain criminal offences. A mandatory minimum sentence means the least number of years that a judge can impose on a person convicted of a particular criminal offence.

It may also be a fine. Judges have limited discretion to exercise in such cases as they cannot sentence a convicted person to a term of imprisonment below the minimum sentence provided by law. Sometimes, criminal trial judges are scandalized by the sentences they are compelled by law to impose on accused persons because they find the law to be irritatingly irrational, unreasonably harsh and excessively burdensome under certain circumstances.

Where mitigating factors exist, judges often wish to impose minimal sentence or none at all on an accused person.

However, the existence of mandatory minimum sentence deprives judges of the
discretion to introduce rationality into the law in appropriate cases. Mandatory minimum sentence is a cruel monster in our criminal justice system, a terrifying phantom that dispenses injustice with reckless abandon.

Absurdities of the mandatory minimum sentence in defilement cases

Almost all sexual offences in Ghana carry mandatory minimum and maximum sentences. Defilement attracts a minimum of seven years and a maximum of twenty-five years imprisonment. Defilement is defined as the natural or unnatural carnal knowledge of a child under sixteen years. In ordinary terms, defilement connotes a violation of the chastity or virginity of a person.

It would appear that as far as defilement is concerned, the aim of the criminal law is to protect the chastity of children from being violated. Clearly, the aim of the legislature is to discourage sexual intercourse, be it natural or unnatural, with children under the age of sixteen years even if they give their consent to the act.

The offence of defilement is gender neutral; that is, the victim may be a male or female. This implies that a woman who has sexual intercourse with a boy under sixteen years commits the offence of defilement. It is important to note that defilement is a strict liability offence. This means once a person has sexual intercourse with a child below sixteen years, that person has defiled the child. When the age of the child is established to be under sixteen years, no defence is available.

It does not matter that the sexual intercourse is consensual. In law, a child below sixteen years is incapable of giving his or her consent to sexual activities. The element of consent is irrelevant under a charge of defilement.

The accused is still liable even if the victim consented to the sexual act.
That is, it is no defence to a charge of defilement for the accused to say that that the victim consented to the act, or initiated it. Even where the victim is a willing victim, his or her consent is no defence.

While it cannot be argued that the law on defilement should change, it may be argued that the imposition of mandatory minimum sentence of seven years may cause injustice in certain cases.

The absurdities and senselessness of the mandatory minimum punishment for defilement come to bear in many situations. It is common to find girls below sixteen years in consensual sexual relationships. They voluntarily enter into sexual relationships either for pleasure or economic gains or both. There are many girls below sixteen years who have given birth.

There are also girls who have developed mature features and deliberately behave like adults to attract male partners. Some of these girls enter into sexual relationships without their boyfriends knowing that they are “eating forbidden fruits”. Experience shows that a man may unknowingly enter into sexual relationship with a girl below sixteen years without knowing that the girl is indeed under age.

Some of the girls even deliberately inflate their years to induce their male counterparts into sexual relationships.
When a man has sexual affair with a girl below sixteen years who is not a virgin or who has a child, the man commits defilement and is liable to be imprisoned for at least seven years. Under the present law, a man can be jailed for defiling a prostitute. While any form of sexual intercourse with or between children under sixteen years must be condemned, one can easily admit that most defilement cases in our courts fall under the “Romeo and Juliet” types of
relationship.

“Romeo and Juliet” relationship refers to all consensual, non-violent sexual
relationships in which both or one of the persons involved is under sixteen years. In a typical “Romeo and Juliet” situation, it is unfair to sentence a person to serve a mandatory prison term of seven years when the two engage in consensual sexual intercourse.

The philosophy behind the law of defilement is that a person below sixteen years is incapable of giving informed consent to sexual act. Any sexual act with such a child is a criminal offence. But can we say all the victims in defilement cases are really non-consensual victims? Can we say that a teenage mother below sixteen years in a consensual sexual relationship is a victim of defilement?

Is it fair to convict and punish a man for defiling a consenting teenager below
sixteen years? Indeed, it does not make any sense to think about a man going to jail for at least seven years for having consensual sexual intercourse with a female prostitute merely because she is below sixteen years. The silent answers to these troubling questions give cause to rethink the punishment regime for defilement in Ghana.

Sometimes, what is worse is where the family of the girl make a case of defilement against the man against the consent of the supposed victim. In such cases, the supposed victim does not consider herself to be a victim, but her unfortunate male offender may still be prosecuted and punished.

Conclusion

It is clear that the law on defilement is necessary to protect the chastity of children below sixteen years. Every form of sexual affair with a child below sixteen years is outlawed on pain of punishment. This article bemoans the injustice and senselessness in the mandatory minimum sentence in defilement cases. In the eyes of the law, a child below sixteen years is incapable of
giving consent to sexual relations.

It does not matter the personality and circumstances of the child. It is immaterial that the girl is a mother. Once the age of the girl is under sixteen, the man commits defilement and is liable to suffer the statutory penalty. In my view, it is illogical and absurd to say a man has defiled a girl under sixteen years who has a child and who gives her consent to sexual act.

Similarly, it is absurd to convict and punish a man for having sexual intercourse with his consenting girlfriend under sixteen years. In the case of Akonobea, who has giving birth to twins, it would be senseless to convict and sentence Sir John to a mandatory jail term of seven years. Here are two consensual partners in a sexual relationship.

But under the current regime, Sir John would suffer a mandatory term of at least seven years imprisonment. It would certainly be a scandal to sentence Sir John according to law. That judgment would be as worse as convicting a man for defiling a prostitute below sixteen years.

It is my modest suggestion that the spectre of mandatory minimum sentence should be removed from the criminal law of Ghana. In the alternative, judges should be given a discretion in terms of the minimum punishment to be imposed having regard to the circumstances of the case.

Similarly, punishment may be graded depending on the existence of aggravating or mitigating factors or circumstances. Foreclosure of judicial discretion in penal legislation causes unnecessary miscarriage of justice.