Rape

Rape is the gravest and most serious kind of sexual assault and is punishable with imprisonment for life with or without whipping (section 358). The offence of rape has been defined in section 357 of the criminal code as follows;

Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threat or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating hr husband, is guilty of an offence which is called rape.

In summary, rape is any unlawful, non-consensual carnal knowledge of a girl or woman by a man.

Elements of rape

1. Absence of consent
2. Penetration

Absence of consent

On a charge of rape, absence of consent is very important and the prosecution has to prove that the accused had carnal knowledge of a woman or girl without her consent. It is no excuse that the complainant is a common prostitute, that she had consented to intercourse with the accused on other occasions; or that she is the accused person’s concubine. Consent obtained by force or by means of threats or intimidation or fear of harm is no consent. Consent given because of exhaustion after persistent struggle and resistance would appear to be no consent. In eng English case of DPP V. Morgan, the House of Lords held that if an accused person believed that the woman was consenting he should not be guilty of rape even though he had reasonable grounds for his belief. In case of Kaitamaki, a New Zealand case that was decided by the Privy Council. The accused claimed that as at the time he was initiating penetration he believed the victim was consenting. It was after he had achieved penetration he discovered she was actually not consenting and he didn’t stop. He was held liable for rape.

The issue of consent is very important as it is the only thing that differentiates ordinary sexual intercourse from rape.

Penetration

For the offence of rape to be committed, penetration is required. Rape is complete as soon as the male organ touches the outer cover of the female organ without lawful consent. Therefore, any slightest touch of the female labia majora by the penis is sufficient. Mere sexual gratification such as scratching or rubbing of the opening of the vagina with the penis leading to ejaculation will not constitute rape but indecent assault because there was no penetration.

In R V. Mayberry, the court held inter alia that the offence of rape is committed upon penetration whether or not there was ejaculation and that the act of sexual intercourse which accompanies it is part of the offence. Therefore, where a person gives aid after penetration the aider is also liable.