Rape Laws Explained: Penal Code, Consent, And Sentencing

Nov 29, 2023

Rape

Penal Code Provision

Rape is defined in Section 375(1) of the Penal Code as follows:

“1. Any man who penetrates the vagina of a woman with his penis –

a. Without her consent; or

b. With or without her consent, when she is below 14 years of age

shall be guilty of an offence.

2. Any man (A) who penetrates, with A’s penis, the anus or mouth of another person (B) –

a. Without B’s consent; or

b. With or without B’s consent, when B is below 14 years of age,

shall be guilty of an offence.”

Currently, only males can be convicted of rape under Section 375 of the Penal Code.

As can be observed, the law does not circumscribe rape to the penile penetration of a woman’s vagina. Non-consensual penile penetration of another person’s anus or mouth is also considered rape.

The law provides (and rightly so) special protection to persons under 14 years of age (presumably due to their vulnerability) by treating them as incapable of giving valid consent to sexual intercourse.

Further, the recent amendments to the Penal Code abolished the immunity against Marital Rape. In other words, husbands can now be convicted of raping their wives.

It ought to be noted that Section 377(3)(a) of the Penal Code defines “penetration” as “a continuing act from entry to withdrawal”. What this means is that a person is entitled to withdraw consent at any time. So, if a woman consents to sexual intercourse at the start, but subsequently withdraws consent midway through intercourse, it would be rape if the man continues with the intercourse.

That said, Section 375(5) of the Penal Code provides a defence to the accused – If the accused was operating under a good faith mistake that the victim had consented to sexual intercourse, he would not be guilty of rape.

The punishment for rape is found in Section 375(2) of the Penal Code, which prescribes for:

a. An imprisonment term which may extend to 20 years; and

b. Caning or Fine

Evidential Difficulties

Generally speaking, rape offences will often take place in a private area (for instance, in the confines of a person’s bedroom). As such, in trials of rape, much would turn on the testimony of the victim. Ultimately, then, it would boil down to a “her word against his” scenario.

Accordingly, legal tests have been developed over the years to combat this issue, particularly relevant for criminal lawyers. The Courts are cognisant of the ease in which an allegation of rape can be brought against a person. Equally, the Courts are alive to the frailties of a rape victim, and that, quite often, gaps may appear in a rape victim’s evidence/testimony. Ultimately, the Courts will carefully scrutinise the facts/evidence and circumstances of the case.

Importantly, however, if an accused were to be convicted of rape on the testimony of the victim alone, the victim must be unusually convincing.

Sentencing Guideline

The Court of Appeal has developed sentencing guidelines for rape. In fashioning an appropriate sentence, the following factors will be taken into account:

a. Whether there was a breach of trust (i.e., the relationship between the offender and the victim).

b. The young age of the victim.

c. Whether the offender was in the company of others.

d. Level of premeditation and planning.

e. Whether severe harm or special trauma was inflicted.

Based on the forecited factors, the Court will then determine which of the following ‘bands’ the case falls under:

Band 1 – 10 to 13 years’ imprisonment and 6 strokes of the cane.

Band 2 – 13 to 17 years’ imprisonment and 12 stokes of the cane.

Band 3 – 17 to 20 years’ imprisonment and 18 strokes of the cane.

After placing the offence in one of the abovementioned Bands, the Court will then calibrate the final imprisonment term based on “offender-specific” factors – these are factors specific to the offender in question, and would normally include the offender’s antecedents (or lack thereof), young age, and genuine remorse.