THE SEXUAL OFFENCES ACT NO 3 OF 2006, PART 5

Consent.

Intentional and unlawful acts.

  1. For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.
  2. (1) An act is intentional and unlawful if it is committed –
  • in any coercive circumstance;
  • under false pretences or by fraudulent means; or
  • in respect of a person who is incapable of appreciating the nature of an act which causes the
  • The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is –
  • use of force against the complainant or another person or against the property of the complainant or that of any other person;
  • threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or
  • abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an
  • False pretences or fraudulent means, referred to in subsection (1)(b), include circumstances where a person –
  • in respect of whom an act is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person;
  • in respect of whom an act is being committed, is led to believe that such an act is something other than that act; or
  • intentionally fails to disclose to the person in respect of whom an act is being committed, that he or she is infected by HIV or any other life-threatening sexually transmissible disease.
  • The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act –
  • asleep;
  • unconscious;
  • in an altered state of consciousness;
  • under the influence of medicine, drug, alcohol or other substance to the extent that the person’s consciousness or judgment is adversely affected;
  • mentally impaired; or
  • a child.
  • This section shall not apply in respect of persons who are lawfully married to each
  1. (1) If in proceedings for an offence under this Act, it is proved-
    • that any of the circumstances specified in subsection (2)

existed; and

  • that the accused person knew that those circumstances

existed,

the complainant is to be taken not to have consented to the act unless sufficient evidence is adduced to raise an issue as to whether he or she consented, and the accused is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he or she reasonably believed it.

  • The circumstances are that-
  • any person was, at the time of the offence or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
  • any person was, at the time of the offence or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
  • the complainant was, and the accused was not, unlawfully detained at the time of the commission of the act;
  • the complainant was asleep or otherwise unconscious at the time of the commission of the act;
  • because of the complainant’s disability, the complainant would not have been able at the time of the commission of the act to communicate to the accused whether the complainant consented;
  • any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the commission of the act.
  • In subsection (2)(a) and (b), the reference to the time immediately before the act is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity
  1. (1) If in proceedings under this Act it is proved that the accused person committed any offence and that any of the circumstances

Evidential presumptions about consent.

Conclusive presumptions about

consent.

National policy

framework.

Regulations.

Chief Justice may

make rules.

7 of 2007, Sch.

Transitional provisions.

Consequential amendments and repeals.

specified in subsection (2) existed, it is to be conclusively presumed –

  • that the complainant did not consent to the commission of that act; and
  • that the accused person did not believe that the complainant consented to the act being complained of.
  • The circumstances are that –
  • the accused person intentionally deceived the complainant as to the nature or purpose of the act complained of;
  • the accused person intentionally induced the complainant to consent to the act complained of by impersonating a person known personally to the complainant.
  1. The Minister shall –
  • prepare a national policy framework to guide the implementation, and administration of this Act in order to secure acceptable and uniform treatment of all sexual related offences including treatment and care of victims of sexual offences;
  • review the policy framework at least once every five years;

and

  • when required, amend the policy
  1. The Minister may, in consultation with the Ministers for the time being responsible for matters relating to internal security, prisons, social services, education and health, make regulations regarding –
  • any matter which is required or permitted by this Act to be prescribed by regulations;
  • the inter-sectoral implementation of this Act; and
  • any other matter which is necessary or expedient to prescribe in order to achieve or promote the objects of this

47A. The Chief Justice may make rules of Court for the

implementation of this Act.

  1. The provisions of the First Schedule shall
  2. The Acts identified in the Second Schedule are amended in

the manner set out in the schedule.

first schedule traNsitioNal ProvisioNs

  1. Notwithstanding the provisions of any other Act, the provisions of this Act shall apply with necessary modifications upon the commencement of this Act to all sexual
  2. For greater certainty, the provisions of this Act shall supersede any existing provisions of any other law with respect to sexual
  3. Any proceedings commenced under any written law or part thereof repealed by this Act shall continue to their logical conclusion under those written

secoNd schedule coNsequeNtial ameNdmeNts aNd rePeals

  1. (1) This paragraph amends the Penal

(2) Sections 139, 140, 141, 142, 143, 144, 145, 147, 148, 149,

161, 164, 166, 167 and 168 of the Penal Code are repealed.

  1. (1) This paragraph amends the Evidence
  • Section 124 of the Evidence Act is amended deleting the words “a child of tender years who is” and substituting therefor the words “alleged victim” and by deleting the word “child” wherever it appears thereafter and substituting therefor the words “alleged victim” .
  • Section 127 of the Evidence Act is amended in subsection
  • by repealing paragraph (b) and substituting therefor the following new paragraph –

(b) with offences under the Sexual Offences Act;

  1. (1) This paragraph amends the Criminal Procedure
  • Section 184 of the Criminal Procedure Code is repealed and replaced with the following new section-

Charge of rape.    184. Where a person is charged with rape and the court is of the opinion that he is not

guilty of that offence but that he is guilty of an offence under one of the sections of the Sexual Offences Act, he may be convicted of that offence although he was not charged with

  1. 48.

7 of 2007, Sch.

  1. 49.

Cap. 63.

Cap. 80.

Cap.75.

it.

  • Section 185 of the Criminal Procedure Code is repealed and replaced with the following new section –

(b) with offences under the Sexual Offences Act;

  • Section 186 of the Criminal Procedure Code is repealed and replaced with the following new section –
  1. When a person is charged with the defilement of

a girl under the age of fourteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.

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