By James Lutaaya Esq.:
Mr. Julian Assange, the founder of Wikileaks who gained world fame yesteryear by publishing thousands of leaked diplomatic cables and correspondences exposing several governments including Britain and America, has hit the head lines again. He is wanted in Sweden to face allegations of sexual assault made by two women. Mr. Asange has sought refuge from being extradited to Sweden in the Ecuadorian Embassy in Britain.
Controversy surrounds circumstances in the rape claim of one of the accusers. She claimed she invited Mr Assange back to her flat, had consensual sex with him and then woke up to him having sex with her again! She is purported to be suing him for rape as she did not consent to the latter intercourse. This oxymoron goes to the much debated and differently opined cynosure to rape; consent to sexual relations. When is consent actually given for sexual relations to proceed? Can it be implied? Does it actually have to be communicated verbally? Is the onus on the woman alone to consent or the man too?
In Uganda, the law on rape is set out in Section 117 of the Penal Code Act thus: – “Any person who has unlawful carnal knowledge of a woman 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 bodily harm, or means of false representation as to the nature of the act, or in the case of married women, by impersonating her husband, is guilty of the felony termed rape.”
Section 118 of the Penal Code Act prescribes the punishment of rape and provides that: – “Any person convicted of rape shall be liable to suffer death.”
The Penal Code Act also provides for attempted rape. Under section 119, it provides that: – “Any person who attempts to commit rape is guilty of a felony and is liable to imprisonment for life, with or without corporal punishment.”
Unfortunately, the reality of this archaic legislation is that rapists in Uganda hardly suffer death and attempted rapists hardly face any consequences let alone life imprisonment. Proof of consent or not to sexual relations is very difficult to establish; mainly because rape usually occurs in the privacy of two people and usually substantial evidence does not yield many prosecutions. In Uganda, marital rape is also not a crime. This emanates from the common law presupposition that a woman at marriage consents to all forms of sexual intercourse with her husband. The assumption is that the man is good willed and the law need not regulate this private enterprise. As such many a married woman are segregated in seeking justice unlike other African nations like South Africa, Angola, Rwanda, Republic of Congo and Zimbabwe that have criminalised marital rape.
In Assange's scenario was he on re-initiating sexual intercourse in the middle of the night; obliged to seek her consent again or otherwise be construed as though he were raping her? In that moment of madness, were his intentions criminal or mischievous? Your guess is as good as mine. The Respect MP George Galloway called it 'bad sexual etiquette', to the condemnation of many anti-rape organisations.
Ugandan men and men globally may also need to dispense of some inherent sexual innuendos that might be detrimental to establishing lack of consent in rape cases? Should No mean No and not be a presumption that women are playing hard to get? If its submissive role play can there be a clear distinction when it is and when it is not? Should how a woman dresses, whether she was intoxicated or not, her character prior to the offence and sexual history play a part in whether she consented or not to sexual relations? In situations where a close friend or family relation rapes a woman; should there be any pressure on her to resolve the issue privately or accommodate the possibility that her trusting him in a private setting could have been tacit consent to sexual relations? The law needs to clarify these issues to allow women avoid potential mistrials and also educate them more on how to avoid potential rape situations.
As Parliament debates the Marriage and Divorce Bill in Uganda, marital rape will be at the forefront of vital issues to discuss; and the concept of consent to sexual relations will be at the forefront of it. The absurdity of all this is that sexual relations between men and women are of recent contrived in suspicion, non contentment, unrealistic expectations and very often variation in partners. Consequences of this are disdain and lashing out with neither parties coming out the victor. That legislation is heading towards a contractual allowance to partake in any sexual relations in a natural and often spontaneous act is to defeat its purpose. Unfortunately human nature and moral degeneration is to blame for it.
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