Authored By: Joycelyn Appau-Asumeng
Presbyterian University Ghana
Abstract
Rape remains one of the most contentious and complex offences in criminal law, with its definition and prosecution heavily reliant on the legal interpretation of consent. This article examines the centrality of consent of the offence of rape, analyzing statutory provisions, judicial interpretations and evidentiary challenges that arise in proving lack of consent.
Using a doctrinal method, the paper situates the Ghanaian legal framework within a comparative context by drawing on developments in jurisdictions such as England and Wales, south Africa and Nigeria. It highlights how differing definitions of rape and varying approaches to consent influence legal outcome, particularly in relation to evidentiary standards and treatment of survivors in the judicial system. While consent is the cornerstone of rape law, its ambiguous construction undermines justice, contributing to under-prosecution and low conviction rate. It concludes by recommending the adoption of clearer statutory definitions, an affirmative consent standard and reforms aimed at improving victim protection and evidentiary procedures there strengthening the effectiveness and fairness of rape law.
- INTRODUCTION
Rape constitutes one of the gravest infringements on personal autonomy and bodily integrity, recognized globally as both criminal offence and a violation of fundamental human rights.1The defining element that distinguishes rape from consensual sexual activity is the absence of consent, making consent the cornerstone of its legal definition. Yet, consent remains elusive, interpreted differently across jurisdiction and inconsistently with case law, creating obstacles to justice.
In Ghana, rape is defined under section 98 of the Criminal Offences Act, 1960 (Act 29) as the carnal knowledge of a female not less than sixteen years without her consent.2This statutory framing, however, raises questions about gender neutrality, evidentiary burdens and the adequacy of protection afforded to survivors. Comparatively, jurisdictions such as England and Wales, through the Sexual Offences Act 2003 and South Africa, through the Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007, have adopted broader and more explicit approaches to consent, reflecting evolving societal and legal understandings of sexual autonomy.3
This article seeks to unpack the role of consent in the legal definition of rape by analysing statutory provisions, case laws and doctrinal commentary. It adopts a comparative approach, situating the Ghanaian framework within a wider legal context in order to identify its strengths and shortcomings.
The central legal research questions are threefold. How is rape legally defined in Ghana and comparable jurisdictions? How is consent understood and proven in law? And what reforms are necessary to strengthen legal protection and improve evidentiary standards? In addressing these questions, the article argues that while consent lies at the heart of rape law, its ambiguous construction undermines effective prosecution and justice delivery.
- DEFINING RAPE IN LAW
The legal definition of rape has historically been framed around the notions of sexual penetration, force and lack of consent. Each element is crucial in distinguishing rape from lawful sexual intercourse, yet the scope of these elements has varied significantly across jurisdictions.
In Ghana, rape is spelt out under section 98 of the Criminal Offences Act, 1960 (Act 29), which in effect says that “whoever has carnal knowledge of a female of sixteen years or above without her consent, is guilty of the offence of rape.”4This provision raises several notable issues. (1), the statutory language restricts the offence to vaginal penetration by a man against a woman, thereby excluding male victims and other forms of non-consensual penetration. (2), the act does not provide a comprehensive definition of “consent” leaving much room for interpretation to judicial discretion. (3), by requiring carnal knowledge specifically of a “female,” the provision reflects an outdated gendered conception of sexual violence, one that is increasingly inconsistent with international human norms.5
In contract, the law of England and Wales adopts a broader statutory framework. Section 1 of the sexual Offences Act 2003 defines rape as intentional penetration of the vagina, anus, or mouth of another person with a penis, where the victim does not consent, and the defendant does not reasonably believe in that consent.6
Importantly, this framework not only expands the scope of penetration but also introduces a dual standard that considers both the fact of consent and the reasonableness of the accused’s belief in its existence.
South Africa has moved even further in reforming its rape laws. The Criminal Laws (Sexual Offences and related matters) Amendment Act 2007 defines rape in gender neutral terms, encompassing “any act of sexual penetration without consent “regardless of the gender of the victim or the perpetrator.7This statutory approach represents one of the most expansive definitions globally, reflecting a deliberate policy shift towards inclusivity and survivor-centered protection.
The comparison underscores significant divergences in how rape is defined. While Ghana continues to adhere to a restrictive and gendered statutory conception, other jurisdictions have embraced broader, more inclusive formulations that reflect evolving understandings of sexual autonomy.
- THE LEGAL MEANING OF CONSENT
Consent is a threshold that separates lawful sexual relations from rape. Despite its importance, Act 29 of the Criminal offences act does not defi e consent in the context of rape.8This omission has left interpretation largely to judicial decisions, distinguishing genuine consent from coerced submission.
In State v Gyimah, the court of Appeal underscores the distinction between genuine consent and mere submission the court held that where a complainant yields out of fear, such submission does not amount to free and voluntary consent.9This case highlights the judiciary’s attempts to bridge the statutory gap by emphasizing that consent much reflect the autonomous will of the complainant. Comparative jurisdictions have moved further. The Sexual Offences Act 2003 in England and Wales expressly defines consent as “agreement by choice with the freedom and capacity to make that choice.10 South Africa’s criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 provides even greater specificity by listing circumstances that vitiate consent, including coercion, deceit and incapacity.11
Similarly, judicial authority in England, such as R v Olugboja, draws a firm line between reluctant submission and genuine consent.12 Together, these comparative models suggest that while Ghanaian courts, as Gyimah, have articulated important principles, statutory reform is needed to provide clarity and consistency in rape law.
- CHALLENGES IN PROVING CONSENT
Proving lack of consent in rape prosecutions in one of the most difficult tasks in criminal law. The burden lies with the prosecution to establish, beyond reasonable doubt, which the complainant did not freely and voluntarily agree to the sexual act.13In practice, this often reduces to a credible contest between the complainant and the accused, often reduced to the “he said, she said problem”.
Historically, Ghanaian courts also operated under a strong corroboration requirement in sexual offence cases, meaning the complainant’s testimony was often viewed with suspicion unless supported by independent evidence14. While this rule has since been relaxed, vestiges of it remain in judicial attitudes, where myths about “real rape” such as expectations of violent resistant or physical injury continue to influence assessments of credibility15.
These challenges explain, in part, the low conviction rates for rape in Ghana. They also highlight the need for reforms that strengthen evidentiary standards and equip judges to assess consent without reliance on outdated stereotypes.
- RECOMMENDATIONS
The analysis shows that Ghana’s rape law requires reform both in substance and procedure. Courts have attempted to fill statutory gaps but the reliance on case-by-case interpretation creates inconsistency. Several reforms stand out:
a) Statutory definition of consent.
Ghana should amend the criminal offences act to expressly define consent as free and voluntary agreement. In state v Gyimah, the court of Appeal distinguished genuine consent from mere submission under pressure.16 Codifying this principle would provide clarity and consistency across cases.
b) Gender-neutral and inclusive definition of rape
Section 9817 limits rape to penile-vaginal penetration, excluding male victims and other forms of sexual assault. In Gligah & Atiso v Republic, the court recognised that penetration beyond “brush work” constituted carnal knowledge, but broader statutory recognition is needed for comprehensive protection
c) Adoption of affirmative consent standard.
An affirmative consent model-requiring clear, voluntary agreement would reorient the inquiry away from whether the complainant resisted. This shift would reduce reliance on stereotypes about “real rape” and align with best practices abroad.18
d) Evidentiary reform and survivor-sensitive procedures.
The strict corroboration rule historically placed undue burden on complainants. In Kobina v The Republic, the Court of Appeal evaluated complainant testimony with caution, reflecting this scepticism.19 However, in Gligah & Atiso v The Republic, the Supreme Court recognised that both direct and circumstantial evidence may suffice to prove carnal knowledge, signaling a more flexible approach.20Codifying such principles and training judges to apply them consistently would strengthen evidentiary standards and survivor protection.
e) Comparative learning.
Reform in South Africa and the UK offers guidance. South Africa’s legislation lists circumstances that negate consent, such as coercion or incapacity, ensuring clarity. The UK’s Sexual Offences Act 2003 defines consent as agreement by choice, with the freedom and capacity to choose.21 Drawing from these approaches, Ghana can modernise its legal framework in line with constitutional guarantees of dignity and equality.
- CONCLUSION
Consent remains at the heart of rape law, yet its ambiguous construction in Ghanaian legislation undermines justice. Comparative models demonstrate that clearer statutory definitions, affirmative standards and survivor- focused procedures enhance fairness and certainty. Reforming Ghana’s rape law is both a legal necessity and a moral imperative to safeguard autonomy, dignity, and equality.
Reference(S):
Books
∙ Estrich, S. (1987). Real rape. Harvard University Press.-book
∙ McDonald, E. (2023). Prosecuting Intimate Partner Rape. Canterbury University Press Journals
∙ Anderson, M. J. (2004). Negotiating sex. S. Cal. L. Rev., 78, 1401
∙ MacKinnon, C. A., & MacKinnon, C. A. (1979). Sexual harassment of working women: A case of sex discrimination (Vol. 19). Yale University Press.
∙ McQuigg, R. J. (2017). The CEDAW Committee and gender-based violence against women: General Recommendation No. 35. International Human Rights Law Review, 6(2), 263-278.
Case Law
∙ State v Gyimah [1963]2 GLR 446-452.
∙ R v Olugboja [1982] QB 320 ,[1981] 3 W.L.R 585
∙ G/Cpl Valentino Gligah and Ec/1 Abdulai Aziz Atiso V. The Republic Sc (Ghana) ∙ Kobina V. The Republic [1984-86] 1 GLR 337-340. COURT OF APPEAL, ACCRA
Statutes
∙ Criminal Offences Act, 1960 (Act 29) (Ghana).
∙ Sexual Offences Act 2003 (England and Wales).
∙ Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 (South Africa).
Official Websites
∙ Ghana Legal Information Institute https://ghalii.org.
∙ UK Legislation, Sexual Offences Act 2003 https://www.legislation.gov.uk.
1Catherine A MacKinnon, Sexual Harassment of Working Women: A case of Sex Discrimination (Yale University Press 1979) 173
2Criminal Offences Act,1960 (Act 29), s 98
3Sexual Offences Act 2003 (UK), s 1; Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 (South Africa), s3
4Criminal Offences Act,1960 (Act 29), s 98
5United Nations Committee on The Elimination of Discrimination Against Women (CEDAW), General Recommendation No 35 on Gender-Based Violence (2017) UN Doc CEDAW/C/GC/35, para 29 6Sexual Offences Act 2003(UK), s 1
7Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 (South Africa), s 3
8Criminal Offences Act,1960 (Act 29), s 98
9State v Gyimah *1963+ 2 GLR 446 (CA)
10 Sexual Offences Act 2003(UK), s 74
11 Ibid, s 1
12 R v Olugboja *1982+ QB 320 (CA)
13 Jennifer Temkin, Rape and the Legal Process (2nd edn, OUP 2022) 115
14 Kobina v The Republic *1984-86+ 1 GLR 337 (CA)
15 Susan Estrich, Real Rape (Harvard University Press 1987) 4
16 State v Gyimah *1963+ 2 GLR 446 (CA)
17 Criminal Offences Act,1960 (Act 29), s 98
18 Michelle J Anderson, Negotiating Sex (2005) 78 Southern California Law Review 1401,1410 19Kobina v The Republic [1984-86] 1 GLR 337 (CA)
20 Ibid
21 Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 (South Africa), s 1; Sexual Offences Act 2003 (UK), s 74.
