Consent is an essential element in many areas of law, including criminal law. In Ghana, the Criminal Code Act 29 governs criminal law, and consent is a crucial factor in determining the legality of certain actions. This article provides a general overview of consent in Ghanaian criminal law specifically Act 29.
Consent is defined in Section 14 of the Criminal Code Act 29 as “the voluntary agreement of a person who has the capacity to give the consent to engage in conduct or to submit to an act of another.” It sums up the provisions for consent as such that, consent is void if it is obtained by deceit or duress, undue exercise of any official, parental, or other authority, or if it is given by reason of a fundamental mistake of fact. It also states that consent is deemed to have been obtained by means of deceit or duress, or of the undue exercise of authority, or to have been given by reason of a mistake of fact if it would have been refused without such deceit, duress, exercise of authority, or error. Finally, a person shall not be prejudiced by the invalidity of any consent if he did not know, and could not by the exercise of reasonable diligence have known, of the invalidity.
One of the areas in which consent plays a significant role in Ghanaian criminal law is sexual offences. Section 98 of the Criminal Code Act 29 makes it an offence to have sexual intercourse with a person without their consent. Consent, in this case, must be given freely and voluntarily by the victim, and the offender must have knowledge or reason to believe that the victim did not consent. The section further provides that consent obtained through force, threat, intimidation, deception, or any other fraudulent means is not valid.
Another area where consent is relevant is in cases of assault. Section 86 of the Criminal Code Act 29 provides that an assault is committed when a person intentionally or recklessly causes bodily harm to another person without their consent. Thus, if a person consents to physical harm, such as in the context of a contact sport or a BDSM relationship, the other person cannot be charged with assault. However, if the harm caused exceeds what was consented to, the offender can be charged with assault.
Consent is also relevant in cases of theft, otherwise in legal terms known as ‘dishonest appropriation’. Section 120 of the Criminal Code Act 29 provides that it is an offence to take any property without the consent of the owner. Thus, if a person takes property with the owner’s consent, they cannot be charged with theft.
It is essential to note that there are limitations to the concept of consent in criminal law. For instance, a person cannot consent to their own death, and therefore, euthanasia is illegal in Ghana. Additionally, a person cannot consent to participate in criminal activity, and any consent given in such circumstances is invalid.
In conclusion, consent is crucial in Ghanaian criminal law, specifically Act 29. It is relevant in various areas of the law, including sexual offences, assault, and theft. However, there are limitations to the concept of consent, and any consent obtained through force, threat, or deception is not valid.