When it comes to stating a prima facie case for rape, things become easier when the accused person accepts there was SEX—leaving the issue under contention to be CONSENT.
Rape is the penile penetration of a woman’s vagina, mouth or anus by a man—without her consent.
So far, KKD and his lawyer have told us that, there was sex with the 19 year old girl—so there was penile penetration.
The issue to be determined now is; was the sex consensual or not (did it happen with the woman’s consent throughout or not)
According to case laws and the various judicial interpretation of consent; consent can be revoked anytime during intercourse by the woman—so with such a ‘power’ in the hands of the woman, if she says she was raped, then it’s very likely she was.
Because, the moment she changes her mind and makes the man aware she does not want it anymore, consent has been taken back and any further touching by the man would amount to sexual assault while penetration would amount to rape…
Though in a criminal case such as rape, it must be proven beyond reasonable doubt—without all the needed information; I will lower the threshold and consider this on balance of probabilities (legally wrong but reasonable right).
On balance of probabilities and in the light of the fact that the woman can revoke her consent even when the man is about to cum; which will not stop most men from pushing that waist the last time, I would reasonably say; I am easily swayed towards a woman who alleges rape as compared to a man who claims there was sex but with consent throughout the entire intercourse…
For the past few days, the main arguments surrounding KKD’s rape charge or accusation on social media have taken a deep root in morality. While we all agree his fate will be tested against the law; some are of the view that his sex with the 19 year old girl capable of being his daughter is morally wrong and others believe, morality should not be brought into the discussion.
The obvious clash between law and morality cannot be limited to KKD’s case, this is one of the greatest conundrums in legal studies which takes it root from jurisprudence—the concept of natural law and also from morality in philosophy.
It would be offensively ignorant for anyone to argue that, legal laws do not have any moral connections—because morality is the fountainhead of if not all laws, most laws.
And considering the fact that laws are interpreted by human beings (in KKD’s case a judge), moral bearings cannot completely be dislocated from the law—and whether we like it or not, whether it is fair or not, the judge’s own moral definitions and understanding would nicodemously find their way to influence how he would treat and adjudicate the case.
Therefore, the all important question is; is it morally right or acceptable for a 49 year old man in the Ghanaian moral ‘jurisdiction’ to be sleeping with a girl of 19 years—and in so doing, have sex with her in the bathroom of a hotel?
If this does not sit well with morality, then the fact that this same girl is alleging rape muddies the water for KKD’s legal defence—and in fact, the judge by now may have already taken a stand well influenced by his or her own moral values.
Philosophers and legal scholars have for many years considered the relationship between law and morality—and to be frank, if there is such a relationship, then it is that which compliments each other, not that which sharply contradicts each other.
You cannot in absoluteness separate law from morality at any given time no matter how hard or objective you may try—and therefore, what is morally wrong more often goes against the essence of the law.
The maxim, he who comes into equity must come with clean hands by extension could capture the idea that, a defence tainted by morality is more likely to harm your defence.