By Olukoye Michael
“The power of the lawyer is in the uncertainty of the law” – Jeremy Bentham
As per the Sexual Offences Act (herein the Act), Kenya, rape is termed to have been committed when a person, intentionally and unlawfully commits, an act that causes penetration with his or her genital organs. Such penetration has to have been obtained under duress or lack of consent thereof. Thus the actus reus is non-consensual penetration.
In most cases, the victim is female. However, this paper seeks to interrogate whether, in the case where the victim is male and the perpetrator female, the law is sufficient to find such a person guilty of an offence.
Penetration has been defined in the Act as partial or complete insertion of the genital organs of a person into the genital organs of another. Breaking it down, this would mean that the perpetrator has to insert their genital organ into their victims for the action to suffice as the actus reus of rape. To further deconstruct it, it would mean that the perpetrator’s genitalia have to be capable of penetrating while the victim’s genitalia have to be capable of being penetrated. What does this mean?
In the first case scenario of a female being raped, the act of a male’s genitalia getting inserted into the female’s genitalia, un-consensually, suffices for the act to be branded as rape. This is because the man’s genital organ can penetrate while the woman’s organ is capable of being penetrated by the former.
However, the bone of contention arises in the second scenario where it’s the woman doing the raping while the man is the victim. It is factual that not only can a woman’s genital organ not cause penetration, but also that a man’s genital organ cannot be penetrated. Thus, the implication of this is that the definition of rape essentially excludes the possibility of male victims.
Impossibility of defence
This leads to what is termed in law as an impossibility of defence. John Kaplan and Robert Weisberg in Criminal Law: Cases and Materials define this situation as a one that comes into play when the actor’s goal is illegal but the commission of the crime is physically impossible. Instances include pick pocketing an empty pocket or breaking into – with the intention to steal – an empty house, or shooting at a person an unloaded gun.
The stand of common law has been that impossibility is a complete defence. If the commission is impossible, what is the crime then? As it is in our case, we find that the way the law is defined is not accommodative of a crime of rape by the female. The inclusion of the pronouns he and she in the definition of rape does not help matters either, in attempts to alleviate the erroneous definition.
Kiarie Waweru Kiarie in The Sexual Offences Act: Omissions and Ambiguities notes the same, contending that the Sexual Offences Act assumes that female genitalia can penetrate that of a male, which relates to impossibility. In his view, if a woman is charged with rape, she will be acquitted on a technicality because it is easy to prove that her genitals did not penetrate a man’s.
What is the way forward?
I propose insertion of the following clause in the definition of sexual assault: “manipulation of the genital organs of another person so as to cause penetration”. The law would then apply equally to women who manipulate men and cause them to perform coitus un-consensually. Thus, an amendment is due if we are to begin convicting women offenders.