Rape is an intentional and unlawful penetration into the reproductive organ.of a victim. Traditionally, it was associated with a male committing a sexual intercourse with ill-intention with a female.
Intentions, including attempts to penetrate qualify for the crime. In criminal law, men’s real (intent), creates the first element of the crime and actus reaus (actual conmission) of the criminal act, fulfils the mission. Rape is one of the serious offenses against the state. It is an unlawful (forceful) means of obtaining sexual pleasure from the victim. It is punishable by maximum 14 years imprisonment as per the stipulation of Section. 247 of the Penal Code Act (PCA) 2008, laws of South Sudan.
To absolve the crime of rape, consent is necessary as a burden of proof of commission, and one of the defenses. The consent is, however, null and void when the age of the victim is questionable, especially if below 18 years of age. The law is clear here. Yet rape does not happen only to underage human beings. It occurs daily across different age sets. Older or young ones suffer from sexual violence of rape at various times and degrees.
Rapists often target women and girls, than men and boys, though sometimes, men and boys at tender age may suffer unreported violence from both males and females.
Section 247 (1) of the Constitution stipulates that whoever has sexual intercourse with another person, against his or her will, commits the offence of rape. In Sub-Section (2), consent is invalidated by being of underage. In Sub-Section (3), it is expressly provided that ‘sexual intercourse by married couple is not rape, within the meaning of this section’.
When one of the spouses says, I am not ready for sex, today or whatever the case may be, and the other partner forces themselves on them; does that mean consent or force?
The fight against eradicating the crime of rape should start with amending Sub-Section (3), so that any forceful sexual gratification may be punishable as long as force was applied to achieve the same, including in marriage. Criminalizing Sub-Section (3) of Section 247, may save most of our societies. It is only with the understanding from family levels that force in bed is unacceptable, whether in marriage or not, can be effective.
Sexual engagement is the final stage of marriage and only occurs after approval of the families of the bride and bridegroom, usually when dowry has been negotiated. Treating sex as an ingredient of the proposal for marriage may result in less years imprisonment. Instead of 14 years, a suspect may serve seven years and come out, to commit more rapes. With 14 years’ imprisonment, a rapist becomes old, and may not be able to cause more harm in the community. So, the younger the rapist, the higher the sentence he or she deserves, to give a window of peace to the society.
Sexual violence is broader and rape related offenses include the non-consensual touching of hands, hugging in offices, on roads or bus parks, targeting private parts (chest, breasts and waists). Greeting by hands or kissing the cheeks or an ear may not constitute a crime. Waving is a dignified way of greeting, and may include the touching of the shoulders or backs. The human body is made in such a way that it reacts positively or negatively to stimuli.
How many jobs have been lost by women for declining sexual advances to the hiring managers across the globe? How many photos and videos of women have been posted on social media by criminals after they gained what they wanted? How many victims remain silent but in pain, due to poverty and because they could not afford legal costs involved in initiating a criminal process?
The recent rape related video, allegedly from Shirkat, could serve as an example of how victims suffer from their tormentors! The case is not the first of its kind and may not be the last.
Victims of rape may be killed and bodies dumped afterwards to conceal the crime. Mitigating this may require more severe prison sentences.
The rise of sexual violence may be due to family break ups, poverty and substance abuse. Family break ups destroy the parenting role. When couples storm the courts to dissolve their unions, even when the two are blessed with some grown children, the trend of crime starts. Men and women stand guilty at this point. The children are compelled to comply with the dictates of the new mothers in the event of new marriages, at their own risks. The father may not have ample time to monitor the children’s development.
As part of the solutions, rehabilitation hostels should be constructed to accommodate the street children, preferably away from towns. Poverty can be reduced through agriculture. Cultivation does not require formal training. Peace too is vital so that the children are not abducted and auctioned against their will. They should stay and study in their own geographical locations free from violence.
While drug abuse is a crime, the deadly marungi is often consumed in the open, particularly in Juba.
Why should the consumption of drugs be criminalized theoretically their consumption be allowed in the open?
The youth should be brought to the table and be listened to. The Ministry of Interior should prioritize the support to the youth and the courts should clear caseloads, build more courtrooms, and expand or upgrade detention centers, to become reform once the facilities.
The writer, Ukongo Benson Athia, is a South Sudanese lawyer in private practice.
The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made is the responsibility of the author, not Radio Tamazuj.