Issues of violence against women in general and offences of a sexual nature against same in particular have become extremely topical and have also provided the foundation for many debates or arguments revolving around the laws affecting women, especially those requiring review or obliteration. This has largely been due to existence of a history of they being marginalized. Under Sierra Leone law, offences of a sexual nature as they affect women can broadly be divided into the Common Law offence of rape on the one hand, and various statutory sexual offences as stipulated under Caps 30 (Protection of Women and Young Girls Act) and 31 (Prevention of Cruelty to Children) of the Laws of Sierra Leone 1960 on the other. The term sexual violence is generally used to describe “[a]ny violence, physical or psychological, carried out through sexual means or by targeting sexuality” [i] Examples of sexual violence include rape and attempted rape; acts such as forcing an individual to strip naked in public, forcing two victims to perform sexual act on one another or harm one another in a sexual manner, mutilating a person’s genitals or a woman’s breasts, and sexual slavery.
The term “rape” which originates from the Latin verb “rapere” (meaning to seize or take by force) generally can be legally defined as unlawful carnal knowledge of a woman without her consent. The lack of consent does not necessarily mean that the victim generally refused to give consent. It simply means that consent was either obtained by force, threat of injury or other form of duress, or where consent was given by a person whose age was below the age of consent. Furthermore, rape may also be an act of forced penetrative sexual act, against a victim who is unable to decline due to the effects of drugs or alcohol. The related term “statutory rape” is where a sexual act is automatically considered rape by the law, regardless of whether it was coercive or consensual, which under Sierra Leone law refers to intercourse with a girl under the age of 16. The later provision exists to protect girls under the aforementioned age, as they are more easily influenced and therefore shielded by being automatically deemed unable to give legally effective informed consent. It is particularly important to note, bearing Sierra Leone in mind, that for much of human history, rape, violence and war have occurred in connection with each other. Indeed, over the last 100years, the use of rape as a “weapon of war” has been well documented, a fact particularly relevant to Sierra Leone’s recent history.
Under Sierra Leone’s Statutory Law, Cap30 makes it an offence for any person to procure or attempt to procure any girl or woman under 21 who is not a common prostitute or of known immoral character, to have an unlawful carnal connection; [ii] whilst it is also an offence to procure or attempt to procure any woman or girl for an unlawful carnal connection. [iii]
Similarly, Cap 31 sets out various offences of a sexual nature. These include unlawful carnal knowledge of a girl under the age of 13, [iv] and abuse of a girl over 13 but under 14, [v] and indecent assault or attempted carnal knowledge of a girl under the age of 14. The said Act also makes it an offence to procure or attempt to procure any child who is not a common prostitute or of known immoral character, to have unlawful carnal connection. [vi] Further, abduction of an unmarried girl under the age of 16 for moral purposes also constitutes an offence. [vii]
Problems in Substantive Law and Procedure
Upon a closer examination of the statutory provisions of laws governing rape in Sierra Leone, there are several deficiencies some of which are very confusing even for persons working in the criminal justice system, such as members of the judiciary and police force. They are also archaic and date back to the British 1861 Offences Against the Person Act. Under this Act, rape is defined as “the unlawful carnal knowledge of a woman without her consent by force, fear or fraud.” Penetration (however slight) is required to constitute the crime of rape. In addition, although a child is defined as a person under the age of sixteen, Sierra Leonean law makes the extremely unhelpful distinction between unlawful carnal knowledge of a girl under the age of thirteen and unlawful carnal knowledge of a girl between thirteen and fourteen years of age. That is to say, the age of the victim in question is not consistent. The ages of 13, 14 and 16 are mentioned in the Acts referred to above, as the relevant ages of girl victims with regard to the various offences highlighted. In this light, it is important to note that a person charged with an offence under Cap 31 is afforded a defence by proving that the girl in question was not under the age specified in a particular offence, and such offender is also afforded a defence if he can prove that he had reasonable cause to believe that the girl in question was above the specified age. [viii] That is, a person charged with abusing a girl under the age of 13 has a valid defence if he proves that the girl in question was over that age; similarly, a person charged with abduction of an unmarried girl under 16 can establish a valid defence upon proof that the girl was above that age.
Moreover, unlawful carnal knowledge of a girl under the age of thirteen, whether with or without her consent, is a felony and carries a maximum sentence of fifteen years of imprisonment. Unlawful carnal knowledge of a girl between the ages of thirteen and fourteen, whether with or without her consent, is however, only considered a misdemeanor and carries a maximum sentence of two years.
Rape of a person over the age of sixteen is considered a felony and carries a maximum sentence of life imprisonment. Indecent assault-sexual assault without penetration-on or attempts to have carnal knowledge of girls under the age of fourteen years carry the same maximum sentence as unlawful carnal knowledge of girls between the age of thirteen and fourteen, that is, only two years of imprisonment. No person can be convicted of unlawful carnal knowledge, indecent assault or attempted unlawful carnal knowledge “upon the evidence of one witness, unless such witness be corroborated in some material particular evidence implicating the accused.” [ix] That is to say, more than one witness must testify to warrant any conviction.
The law pertaining to the abduction of girls for immoral purposes applies to any unmarried under the age of sixteen. Abduction of girls for immoral purposes is a misdemeanor, carrying a maximum sentence of two years of imprisonment.
In addition, some of the offences discussed above require that the girl victim must not be a common prostitute of known immoral character, thus robbing girls of such a description protection under the Acts in question. It is salient to remember that the law generally considers girls under the age of 16 as legally incapable of giving consent. Hence the element requiring a girl not to be a common prostitute or of known immoral character runs against the grain of this principle.
The manner in which rape is dealt with under customary law is indicative of the societal values towards sexual violence and the low status of women and girls in Sierra Leone. Although all serious criminal cases should be automatically tried under general law, rape cases continue to be prosecuted under customary law in the local courts. Problems are also encountered in the investigation and prosecution of sexual offences. Many incidents of rape and other sexual offences are not reported. The most common reasons given by victims are that, it is a personal or private matter, the stigma attached to the victim of such an offence and the fear of reprisals by the offender. Where they are reported, it is common for some of these matters to be settled out of court, with the family of the victim undermining the administration of justice by requesting compensation or remedy to be provided by the offender.
In addition to the legal confusion that exists in the law concerning rape, attempts by women to obtain the prosecution of rapists are frustrated by the collapsed state of the judiciary and the lack of effective law enforcement, which has contributed to the on-going climate of impunity for offenders. Furthermore, because of the high cost of litigation, a good number of victims who come from humble backgrounds do not have the finance to start legal proceedings against accused persons for sexual offences. However, with the willingness of the victims, some human right activists/ organizations sometimes do intervene to prosecute such matters. One such example is a sexual offence case involving a fourteen-year-old girl currently being concurrently prosecuted in Court Nos. 1A and 3 presided over by Magistrates Adrian Fischer and Shyllon in Freetown respectively. The accused, a secondary school teacher in Freetown, is charged with threatening to kill the victim in Court No.1A and rape, abduction and illegal abortion in court No. 3. Worthy to note is that, whereas the prosecution has two pro bono lawyers, the accused on the other has four defence counsel. Added to this, the SLCMP has also observed that the said child victim is being intimidated in the court’s vicinity by relatives of the said accused, which may have the effect of lessening her resolve to testify. It is important to note that the prosecution of these cases serves as an attenuation of the psychological trauma suffered by victims of these offences. Sad to note, however, is that there is currently lack of personnel and adequate training in the police to ensure this.
Also, even though many advocacy groups have argued for the preservation of the victim’s privacy during the process, this practice is yet to be fully effected in the judicial system in Sierra Leone.
Recommendations
As many general law provisions have not been updated since colonial days, the protection that general law affords women is often only marginally better than that provided under customary or Islamic law. On examining the above problems, it is submitted that several substantive and procedural reforms need to be put in place in order to effectively clamp down on the prevalence of rape and other sexual offences.
To start with, the law ought to strive at creating a uniformity in the minimum age in cases where the victim are young girls, and the elements of a girl “common prostitute and of known immoral character” be removed from the statutory provisions in its entirety. There should also be consistency in the punishment meted out to culprits of sexual offences against young girls below the age of consent.
The government should further ensure a strengthened capacity for investigating and prosecuting authorities coupled with mechanisms that further protects the victims as well as witnesses at all stages of the proceedings such as privacy and witness protection. The authorities should also consider the enactment of an umbrella statute dealing with all classes of sexual offences.
The SLCMP is of the view that these reform measures proffered will definitely be a stepping stone towards combating sexual offences in Sierra Leone against women in general and young girls in particular.
[i] United Nations, Comtemporary Forms of Slavery: Systematic rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, Final Report submitted by Ms. Gay J. McDougall, Special Rapppotuer (New York: United Nations, 1998), E/CN.4/Sub.2/1998/13,pp. 7-8.
[ii] s .2 Protection of Women and Girls Act(Cap30 Laws of Sierra Leone 1960)
[iii] Ibid s.3
[iv] s.6 Prevention of Cruelty to Children Act(Cap30 Laws of Sierra Leone 1960)
[v] Ibid., s.7
[vi] Ibid., s.10
[vii] Ibid., s12
[viii] Ibid., s15(3)
[ix] Ibid., 14