By Dr. Samuel Adjei Sarfo
Attorney and Counselor at Law
The recent arrest of Ghana’s ace broadcaster and media personality, Kwasi Kyei Darkwa, on the offense of rape has foregrounded the need to discuss the legal nitty-gritty of the charge itself in the context of the Ghanaian law. This is more so where so-called legal brains in the country have revealed their cluelessness about the laws by making pronouncements based simply on emotions, guess-work and hearsay.
Kwasi Kyei Darkwa is accused of having raped a nineteen year old girl at a hotel bathroom while the girl’s friends and relatives waited in the main room. Footage of the couple embracing and kissing before and after the sexual act have surfaced in the Ghanaian media seeking to corroborate Kwasi Kyei Darkwa’s assertion of the defense of “consent” in the matter. This article examines the merits of his defense by quoting extensively from Prof. Elizabeth Archampong’s 2011 article entitled “THE TREATMENT OF CONSENT IN SEXUAL ASSAULT LAW IN GHANA”.
In Ghana, the term sexual offences is used in Chapter Six of the Criminal Offences Act, 1960 (Act 29) and it covers “any unlawful dealing with a female by way of rape, defilement, and in the case of unnatural carnal knowledge, the victim could be either a man or woman, indecent assault (man or woman) and again, incest.” Section 98 of the Act defines rape thus; “rape is the carnal knowledge of a female of not less that sixteen years without her consent.” Thus, to prove rape, the accused person must have had carnal knowledge, which is sexual intercourse (penetration), of a female and there must have been a lack of consent on the part of the female. The interaction of the Act’s provisions on consent with the offence of rape is illustrated in the following analysis of case law:
In State v. Gyimah, the facts proved by the prosecution was that the accused was a school teacher resident in the village and the girl was a school girl staying with her parents in the same village. On the day of the alleged rape, the girl was sent on an errand by her mother, when the accused called her in his room when she passed in front of his house. Evidence adduced at the trial proved that the accused had sexual intercourse with the alleged victim of the offence and that there was full penetration. The only issue was whether or not there was consent. The court held that the case for the prosecution had not been proved beyond all reasonable doubt and so the accused could not be held guilty of rape. The Court made the following statement on establishing consent, “On this crucial issue [that is the issue of consent] it is very important to weigh the whole of the evidence very carefully and balance the case presented by the prosecution and her witnesses against that of the accused. In assessing the weight of the evidence much depends on the credibility of the witnesses who testified on the issue.
Evidently there are some unusual features about the evidence of the first witness for the prosecution and the mother and sister of the prosecutrix which raise very grave doubts in my mind and which make their story that the victim shouted in agony almost unbelievable . Firstly, there is some inherent improbability in the girl’s story that she was forced and that she shouted in distress. This is a house in which other tenants live, situated in an open place with people constantly passing and there were other residents such as the landlord of the house who were never called, inmates of the house testified that they were in the house that morning and that they never heard any shouts. I find their evidence convincing and I believe them.
Secondly, the conduct of the girl herself indicates her willingness. She asks the court to believe that she walked straight into accused’s room in all innocence. There is no evidence that the accused induced her by a ruse or deceit to join her in the room. There is no evidence that when she shouted, the accused attempted to place his hand on her mouth. Though pressed by the accused on the shoulder, [the girl] “had the free use of her limbs and never slapped or attempted to kick the accused…”
The girl only put up an act by means of false cries, out of a sense of shame when her mother and sister caught her “in a shameful and disgraceful act red-handed.” Third, the doctor’s report indicated that the girl’s hymen had been previously perforated, and showed no recent injury and no bruises or violence either to the hymen or elsewhere on the girl. Fourth, from the evidence the girl’s mother’s first reaction was anger, to which the girl remained silent.’ Her silent conduct satisfied me as being consistent with the accused story that she consented to the act.
Another rape case, in which the issue turned on consent is Agbemanya v. the State. In that case the prosecutrix, a girl of seventeen years, lived with her parents and the appellant was a relative to the mother of the girl and frequently visited them. The case of the prosecution was that the girl accompanied the accused to visit his friend’s house. When they got there, they entered a room which was unoccupied. The appellant, undressed, locked the door, struggled with the girl and had sexual intercourse with her. The accused then took her back home. The accused admitted having had sexual intercourse with the prosecutrix but maintained it was with her consent. He said although she had put up some resistance, she later yielded voluntarily to the intercourse. Though convicted by the trial court, the appellant’s appeal was allowed.
The appellate judge said: “Was the struggle which took place a genuine registration of non-consent?” He asked if it was credible that the girl sat and watched the accused strip off his clothes and lock the door thereafter, if she had not consented. Thus, the judge expected the girl to have proved that she tried to escape when she saw the accused strip off his clothes and lock the door. The judge also said although the girl’s pant was bloodstained, they were not damaged because she took them off herself for the purpose of the intercourse. The trial judge, the appellate judge stated, did not direct himself and the assessors on the key issue, which was, “which of the two conflicting accounts was most probable? The evidence, according to the appellate judge when taken as a whole, both for the prosecution and the defense, established a very strong probability that there was such consent. The appellant was therefore, in the judge’s view, wrongly convicted.
In another case, Republic v. Dapaah, the accused on pretext of giving the complainant money to purchase something for him, grabbed her outstretched arm, pulled her into his room and forcibly had sexual intercourse with her twice, threatening her with a knife. On the third round of intercourse, three witnesses testified that they heard the complainant pleading with the accused to let her go as he was killing her and they intervened.
The judge in this case stated that, “The evidence of the complainant directed to absence of consent on her part to the sexual intercourse is in my opinion amply corroborated so far as was possible in the circumstances, by the evidence of other witnesses called by the prosecution. I therefore accept her evidence and find that the prosecution has discharged the burden of proving its case beyond all reasonable doubt.”
The treatment of consent in sexual offense cases in Ghana reflect a position that a woman saying “No” to sex is not enough. She must show the strong resistance she put up to confirm her lack of consent. Did she scream? Did neighbors or any passers-by hear her screams? Did she scratch the accused? Etc. Thus, some ways of a woman expressing her lack of consent to sex seem to be preferred by the courts; loud and strong resistance is preferable to a “quiet No”.
A woman’s claim that she did not consent to sex needs corroboration, a requirement that is not stated in statute but is an English practice that has become accepted in Ghana’s courts. When an accused person raises the defense of consent in a rape trial, and given that the standard of proof is that of proof beyond reasonable doubt, the courts appear to rely more on corroboration, requiring the complainant to prove beyond her word that she did not consent to sexual intercourse with the accused person. Thus, the evidence of witnesses, medical evidence, circumstantial evidence etc. are the kind of corroborative evidence required. Without such corroborative evidence, the courts are unlikely to find that the woman was raped, relying only on her word.
Given all the above Ghanaian case law, it is the strong conviction of this writer that the rape charge against Kwasi Kyei Darkwa will be thrown out with prejudice, that is if it were ever to see the light of prosecutorial action.
Samuel Adjei Sarfo is a Doctor of Laws, Attorney and Counselor at Law, certified High School English Teacher, Researcher and Scholar. He can be reached at sarfoadjei@yahoo.com