The crime of rape involves having carnal knowledge of only a female and not a male of not less than sixteen years without her permission. A male either less than sixteen years or more than the age of sixteen cannot be raped under the laws of Ghana. Section 98 of the Criminal Offences Act, 1960(Act 29).
In Ghana, the offence of rape is gender specific. Thus, a man cannot be raped, not even by his fellow man. In situations like these, it is considered unnatural carnal knowledge and it carries the same sentence as rape. Most importantly, in Ghana, a woman cannot be the perpetrator of rape. Under no circumstance will it be held that a woman has raped a man? This is due to the fact that men use their brains to effect an erection.
In the case of Banousin v Republic (2015), the Supreme Court highlighted the essential ingredients of rape, thus: the victim has been carnally known; it was the accused person who had carnal knowledge of the victim; the victim did not give her consent to be carnally known by the accused person, and the victim was a woman and at the time she was carnally known by the accused person, she was aged sixteen years or more.
While these essential elements must be proven beyond a reasonable doubt, however, the court has held in the case of Hanson v The Republic (1978) that, if the prosecution fails to adduce evidence of the victim’s sexual intercourse with a man by means of the penis penetrating into the vagina, but by any other means such as fingers, tongue or stick, the action will fail.
Be that as it may, the court also held in the case of Agbemenya v The State (1964) that the absence of consent, empowered under sections 14 and 42(g) of Act 29, is essential proof of rape, i.e., the prosecution is required to prove the lack of consent or express withdrawal of consent even if it was granted for the cause of action to succeed. This goes to say that even when a lady redraws her consent in the middle of intercourse, the man must stop since continuing will be classified as rape.
Flowing from the above, rape is not a gender-neutral act but gender specific. Rape is limited to females by an act of forceful penetration of the penis of a male. Once a male is erected for a female to have sex with him, it is considered consensual since lack of consent will not result in an erection.
However, it will be considered indecent assault if the sexual act of the female towards the male does not result in natural or unnatural carnal knowledge as per section 103 of Act 29.