By Justice Claudette Singh CCH, Former High Court Judge & Justice of Appeal
A person commits the offence of rape if he engages in sexual penetration with another person (the complainant) without consent, or causes the complainant to engage in sexual penetration with another person. Silence or lack of physical resistance cannot be inferred as consent.
The term “penetration” has been given a very wide meaning under Section 2 of the Act, and is not limited to penetration by the male penis, but the intrusion of any part of a person’s body or of any object into the vagina or anus of another.
A person who commits the offence of rape is liable on conviction on indictment to imprisonment for life.
Under Section 4 of the Act, a person commits the offence of sexual assault if –
he touches the person in a sexual way.
“touching” is defined in Section 2 of the Act as including touching –
- with any part of the body which includes a part surgically constructed (in particular through gender reassignment surgery);
- with anything else or
iii. through anything
Sexual activity with a child under sixteen (16) years; meeting a child under 16 years following sexual grooming and sexual activity with a child family member.
The Act also makes paper committals mandatory in that it specifically prohibits oral preliminary enquiries.
To conclude, it would seem that the Act is more favourable to victims. Section 69 states that the Judge is no longer obligated to warn the Jury that it is dangerous to convict the accused without corroboration of the complainant’s evidence. Corroboration is independent evidence which incriminates the accused on a material particular.
The Act dispenses with this warning being given to juries. Previously, absence of this direction by a Judge would warrant the conviction on such a charge to be set aside.
A child or an adult may, after being raped, complain about the ordeal to a parent or a trusted friend almost immediately after. This is known in law as a “recent complaint”. This complaint is admissible at the trial, not as evidence of the truth, but, to establish consistency in the person’s story to rebut a charge from Defence Counsel as recent fabrication, improper influence or motive. Under Section 72 of the Act, as to whether the complaint was made as soon as could reasonably be expected, the Court must consider certain factors specified in the section. Each case would now turn on its own peculiar facts.
It would seem therefore, that if the complaint is not made immediately, but some time after it would still be admissible.