By Sarjo Barrow, USA.
Evolution & Legal Definition:
Like abortion and immigration in the United States, rape seems the most prominent wedge issue in The Gambia. The ongoing rape trial at Bundung High Court has caught the public’s attention because of the unreasonable delay in this case. As a result, journalists, citizens, activists, etc., all rush to the public space to share their views. Following the trend on Facebook, I think it’s imperative to explain to the general public the current laws on rape—regardless of whether one agrees with them. Indeed, under Gambian law, every accused is presumed innocent until proven guilty. Simply put, the burden is on the State to prove your guilt. Still, because of the gravity of the offense, the State MUST take, at face value, every allegation of rape until their investigation proves otherwise or prosecution is not feasible—remember, the legal term “not guilty” does not mean ACTUAL INNOCENCE!
Today, rape remains one of the most widespread crimes globally and affects one in ten women. One in five women in the United States! Although rape is criminal in almost all countries, many remain unprosecuted. Yet, under international humanitarian and criminal law, it is a well-accepted principle that rape is a human rights violation, including the right to bodily integrity, the right to autonomy (sexual independence), and the right to privacy. In modern jurisprudence, the acceptable definitions of rape are centered on the lack of consent rather than the presence of physical force because it is the most inclusive of all rape victims and ensures the prosecution of all perpetrators. Still, under the 2013 Sexual Offense Act, Gambia’s definition of rape is focused on coercive conduct instead of consent. Notwithstanding, the definition has evolved, beginning with the acknowledgment of rape as a war crime and its continuous revision to criminalizemarital rape.
To underscore the significance of sexual autonomy, the United Nations (UN) established the mandate of the Special Rapporteurin 1994 (think Lawyer Mama Fatima Singhateh). This first human rights instrument focused solely on violence against women. The Special Rapporteur was quick to pay special attention to the criminalization of rape. For example, in 1995, in its first report to the Commission on Human Rights, the Special Rapporteur recommended that the definition of rape must centeron a lack of consent and include all types of penetration to give prosecutors ample ammunition to bring a charge. The report took issue with courts requiring evidence of force and physical resistance from the victim to make a rape case. In effect,countries move away from the common law definition of rape to recognize the gravity of the crime. And in 2011, the Istanbul Convention recognized violence against women as a violation of human rights and a form of discrimination against women. The Convention defined rape as “all forms of sexual acts performed on another person without her or his freely given consent and which are carried out intentionally.” The Convention established an international standard accepted today in which consent is the dividing line between rape and sexual intercourse, effectively broadening the scope of inclusion of all rape cases and enabling them to be prosecuted.
Case study-The Gambia!
Before the coming of the 2013 Sexual Offense Act, Section 121of the Gambia Criminal Code defined rape as “[a] 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 threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by personating her husband, commits the felony termed rape.”Under previous law, rape refers to a male engaging in unlawful forcible sexual intercourse with a female, not his wife, without her consent. And in situations where the victim is tricked into thinking that the act is something other than sexual intercourse, it is fraud in the factum.
Under Section 121 of the 1933 Criminal Code, Gambia rape definitions mirror common law rape. At common law, rape was defined as unlawful forcible sexual intercourse with a female person without her consent. Because rape at common law had to be unlawful sexual intercourse, a husband could not be convicted of raping his wife. In 2013, the National Assembly passed the Sexual Offense Act to address the criminal code anomaly. Because this Act supersedes section 121 in the Criminal Code, all rape prosecution after 2013 is under this 2013 Act.
For unexplained reasons, the 2013 Act creates more questions than answers to what gender activists have been fighting to bring the Gambia’s rape law to international standard. The 2013 Actdefined rape as “[a] person who intentionally, under coercive circumstances (a) engages in a sexual act with another person; or (b) causes another person to engage in a sexual act with the perpetrator or with a third person, commits the [offenses] of rape.” Although the Act is commended for expanding rape to both genders, it still excludes spousal rape—except for assault or battery, there’s no rape in marriage under Gambian law. Also, although the age of the majority is 18 years old, the 2013 Actonly recognizes those less than 16 years of age as lacking in capacity to consent and not 18 years. In addition to a marital exception under the Act, Article 33(5)(c) of the 1997 Constitution creates an affirmative defense even if the victim is under 16 years old if it falls under the exception of marriage or personal law.
Moreover, although the Acts define “coercive circumstance,” it is silent on consent or what constitutes valid consent. Except for what appears to be statutory rape § 3(2)(d) (“circumstances where the complainant is under the age of sixteen years“), again, the law focus on the presence of physical force or threat. Thus in the absence of fraud/misrepresentation, it is a credibility contest if physical force or threat is not involved. And in a society like ours, courts could easily misconstrue lack of resistance as consent when force or threat is not engaged.
In Mr. Keita’s case, it would appear that the charge is under § 3(2)(d), where the alleged victim is under 16 years. Assuming the complainant was under 16 years when she reported the crime or over 16 years, but the gestation period of her pregnancy happened while less than 16 years, the State’s burden is to prove she was less than 16 years at the time of the crime.
Where rape does not end in pregnancy or is reported immediately after the event to allow for possible Sexual Assault Nurse Examination (SANE), the prosecution would have a difficult task because the victim’s credibility is all they have to prove their case in addition to her birth certificate. But here, the alleged crime resulted in a pregnancy, and your complainant can or has identified her alleged attacker. Not only do the police have probable cause to arrest on such information, but the State has enough to secure a search warrant for DNA. Yet, the State failed to secure DNA immediately after arrest and prosecute this case in a timely fashion. Indeed, under Gambia Criminal Procedure, a pretrial or scheduling conference is foreign to the practitioners, limiting “motion in limine” practices. But had the State been effective in prosecuting this case, they would have obtained DNA from the word go. Such evidence will be conclusive proof of the case if the gestation period falls at a time when the victim is under 16 years old. Although a negative result does not insinuate false allegations, it can help the State decide if to prosecute if you have a less than credible witness. After all, under the rule of professional conduct, a prosecutorshould refrain from prosecuting a charge the prosecutor knows is not supported by probable cause.
In conclusion, the State, the Defense team, and the judiciary respectfully failed the victim and the accused in handling this case. The State’s negligence and lack of diligence in prosecuting, the unnecessary delay from the bench, and the defense for failing to file dispositive/pretrial motions except for bail application speak volumes to our justice system. For this reason,we can all draw a less or two from this case:
➢ First, the National Assembly should revisit the 2013 Sexual Offense Act and bring it to international best practices. For example, Gambia should expand rape shield laws to protect victims.
➢ The Criminal Procedure Code should be revisited to ensure it complies with the Constitution in protecting the right of all accused. Mr. Keita has been in custody for more than two years, and the delay in trial is not attributed to him. Still, per the Criminal Code, he is charged with an unbailable offense, which in my humble opinion, is an affront to Article 19(5) of the Constitution—a provision not challenged by advocates at the Supreme Court.
➢ With few exceptions, the last major legislation in Criminal Law/Procedure happened in 1933—in the colonial Gambia. How can you expect a streamlined practice or effective judicial system when it is stuck in colonial-era rules?
Sarjo Barrow is an Attorney with the U.S. Department of Homeland Security (Human Rights Program). The author intentionally omitted citations from the excerpt because it is part of an extensive forthcoming article.