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.
insightful analysis….morality is e word
Chris wo ye guy paa. You are so far the best Ghanaian blogger or writer I know. You are too smart for your own good. I love reading this. Your thoughts end all the many moral debate people are making. Charlie you are the best
Stop deleting my comment….
Chris my post just vanished!
How did it vanish? Please retype it—and make sure you do not use any swear words else it automatically goes into moderation or our spam box.
Thanks
Thank God for a very informative and well written piece. Salute!! Wa no wham
Fashion shows seems to be his favourite hunting ground.
Nice piece Chris. How about the campus fun analysts? Was it 1. Man stand girl squat or kneel be? 2. Man sit on wc seat girl sit on top? 3. Girl now to the wall man attach from behind? 4. Girl sit at the edge of sink man take it in front?
Perhaps others can add more possible positions.
Would KKD and Team have conceded to consensual sex if they were not completely busted with a medical report as proof? Wouldn’t he have said he does not know Effe from Adam
Maybe this one was concensual but perhaps several innocent souls have cried in secret to their maker and God has through Effe answered them.
My comment has been deleted yet again, way to promote freedom of speech and expression!
Who’s the accused’s cousin and who’s the accuser’s cousin? Where were they and what were they doing at the time of the rape? How were they in a room by the bathroom and yet heard nothing disturbing worth investigating? How she got in the bathroom makes sense….but what happened after the alleged rape? Hopefully she went to a hospital for a doctor’s report because at this point her willingly going to his bathroom does not really help her case. What else could you be looking for in there since he’s no relation of yours? Rape is a sensitive and serious offence so I hope she’s not taking us for a ride because that wouldn’t be funny in the least bit as some are of the opinion that she might be paying him back over a deal turned sour. Whatever the case there is something extremely upsetting and morally wrong about a 49 yr old dating a 19yr old and even worse when she’s your daughter’s age mate. What about the other women? They couldn’t all be lying. What’s there to gain by speaking out now? Maybe they felt emboldened after many years of keeping silent in shame in a culture like ours where family name is more important than the victim’s wellbeing, where rape is almost always the fault of the victims who are mostly young girls and the weak and vulnerable in the society. I say there’s no smoke without fire. I just hope justice is rightly served.
3rd time typing:
Nice piece Chris. How about a Campus fun analysis? Was it 1. man stand girl squat or kneel blow job? 2. was it man sit on wc seat and girl sit on top? 3. Was it girl bow to the wall palms outstretched for support while man attach’s from behind? 4. girl sit’s to the edge of sink while man take it from the front? Perhaps others can add more possible positions… Would KKD and Team have conceded to consensual sex if they were not busted with possible medical proof, no room for escape? Would’t he have said he didn’t know the girl from Adam?
Maybe this one was consensual sex, but perhaps it’s the answer to the secret and silent prayer of many innocent souls, whose God have answered through Effe.
What libido? Whatever happened to the inner man and dignity?
Chris, I am afraid you are stretching to support your conclusion. Morality has no place in the courts. Yes, it may have formed the basis for the writing of laws but legally morality has no place. The age of consent varies from country to country. You may find it morally wrong for a 16 year old to be having sex but in some parts of the world a 16 year old is allowed to marry and have sex with her husband. Morally it is wrong to kill. But in some places killing is legal in defence of property and self – Florida, Texas etc.
My gut tells me you’ve already concluded KKD is guilty and you are setting up the grounds to convict him in the realm of public opinion if somehow he gets off in the legal case. You are trying to convict him using the ‘disgust factor’. Which the fact that a 49 year old man slept with a 19 year old girl. But that is not the law. 19 year olds are fuckable. And in Ghana 19 year olds fuck older men. So there is nothing disgusting about that. At issue is whether he forced himself on her. Those two people in the living room are crucial to determining that. What they heard can be key to the whole case. If they heard cries for help or her withdrawing of consent, then that will be enough proof that there was rape. However if both testify that they heard nothing, not even a muffled no from the bathroom then something is up. There are two key things to consider in your rush to judgement as well. Who rapes someone in the bathroom when his cousin and the victims cousin are right in the living room? The second thing to consider is why her change in statements at police station? Here is my take, the girl had sex with KKD and later told her friends. They pressured her to cry rape -ala Bill Cosby. Those boys who originally reported the rape should be interviewed to determine when and how they came by the rape information. Also important is to determine which one of the boys is dating or is in amorous relationship with the girl. Credibility is at stake here.
Manasse, a 49 year old famous man who can have sex in a bathroom whiles cousins chat in a living room/waiting area can equally rape whiles same relations wait don’t you think?For if there be a DOT of morality in him, sex in the washroom of a hotel would not be the option. 2. Do you know the distance between the living room and the washroom? Was there music playing? Was the place busy with patrons? Perhaps you are on the KKD’s side of the fence, after all, 19yr olds are “fuckable”, as according to you!
Perhaps you should also not condemn the victim too quickly. Influences like yours, and all the power of fame is in favour of KKD already.
I hope rustics is indeed served.
Debby, What a stretch? Having sex in a washroom with relatives in the living room is at worse a risky act. Not a moral act. And it also doesn’t mean you are capable of rape. Rape is a violation of a person space and as such has a lot of uncontrollable dimensions such as screams, physical struggle etc. These are things an intended rapist cannot control. That is why rapists generally seek to control these variables by overpowering their victims and seek remote or quite places for their deeds. No rapists will dare attempt such an act within an earshot of the victims relatives. Saying 19 year olds are fuckable doesn’t mean that is what I do or I support KKD. It means 19 year olds are fucking in Ghana and elsewhere. And we shouldn’t act surprised. From my angle the victim is yet to be determine in this case. KKD may be the victim of a honeypot trap. After all Julian Assange is still considered a rapist, and is still hiding in London, despite the mountain of evidence to the contrary. When it comes to women crying rape, there is enough evidence to suggest it isn’t always so. It is always imperative to get all the facts before reaching a conclusion. In the past 40 or 50 years, the feminists have ensured that a consensual sex at night, can be rape the next morning. The power to make such a determination lies solely at the discretion of the woman.
I do not know your legal background but anyone who knows how laws work would never attempt to sharply distinguish morality from law—-and also say; morality has not place in the court room.
Of course morality should have no room in the court room—note the use of the word SHOULD but in reality, it plays a very influencing role in the court room. You cannot undermine the force and the essence of morality in law—from the source to it practice.
It’s like the legal expectation and assumption that laws should only be made by parliament or the legislature and the judiciary should only interpret these laws but in practice, judges make laws everyday—now called case laws.
So how things should be or ought to be in law—is different from what they are and on this note, every lawyer or legal scholar will accept that in the practice of law or interpretation of law, morality still hovers and influences it.
Judges are not robots, they are human beings and cannot be expected to function out of the sphere of morality—so I cannot spot the stones on which you’ve built your argument that morality does not have a chilling effect or influence in the application of laws anywhere in any world.
As RJ Rushdoony puts it; “we may disagree with the morality of law but we cannot deny the moral concern of a law”
Just as H.L.A. Hart conceded, ‘there was an overlap of law and morality at the moment of the creation of our legal or political systems’—and up to date, the overlap still exists and morality influences our legal judgments even if we hate to admit so.
Now back to your assumption that the two people in the room should have heard something like a scream or withdrawal of consent; this is pretty weak—the determining factor in rape is not force with which you opposed the act or if there was a scream or not. It’s the non consenting element—and you can just by even sign tell someone I don’t want this and when the person proceeds, shut up with the intention to go out later
and report.
So a scream, shout or if anyone heard anything does not really
matter here; what matters is; either there was consent by the girl in question
or not.
You also mentioned that I have already concluded KKD is guilty—of course I have based on balance of probabilities (I explained this
is not the criminal threshold though) and I think I did explain why in my
article.
If I am asked at this stage with just what I know, my understanding of rape and more important not forgetting the element of morality; I would side with the woman—and my reasons were made clear in the
article.
I did not just jump to that stand; I explained why.
Chris, as a law grad you should understand the need to remove your personal morality from issues on trial. Secondly the fact that legal personnel allow morality to overlap their legal duties don’t make their actions right. You of all people should understand the need to keep morality(which is often a cloaked religious precepts) out of the court rooms. The courtroom or the legal system is no place for morality else you, Chris, as an atheist, will be one day be subjected to the morality of the believers. Be it the sharians or the evangelicals.
‘Judges are not robots, they are human beings and cannot be expected to function out of the sphere of morality-‘ . But judges who choose to use their morals as basis for their judgement are doing the legal system a great disservice. There is a very good reason morality should be kept out of the courtroom. Imagine an evangelical judge using his morals to judge gay issues. Or a neo nazi judge sitting in judgement of interracial couples. Or a muslim judge using his morals to judge non muslims? Or a believer judging an atheist based on his moral beliefs.
@ Manassehatsu, your taughts are also right i must say. But one thing u have to know is that the place the alleged rape issue happen is not just a normal hotel room but a suite, a suite always have more than one bathroom has i know. Remember alot of issues can happen in the room or the said bathroom and other guys in living room will not hear a word. Sometimes there are also ladies who will allow u to have your way especially when they refuse at the first time and u are still pushing for it. I think we all have to wait for the upcoming investigations, I wish him well Happy New Year Everyone
Manasse, even though morality has no legal role to play, I think whichever judge sits on this case will most definitely use ethics in judging the case without even knowing it.
Just because 19 year olds fuck old men in Ghana does not mean it is not disgusting and I say this because they are most definitely not mature enough to handle a man of that age period.
People react differently to different situations for example you might have someone scream when being raped but others might cower in fear and shock and not utter a sound.
Sex has both a psychological and physical component to it, so KKD wouldn’t have had to necessarily physically force the girl to have sex with him. He could have played with her mind with words and put her in a position where she had sex with him against her emotional willpower.
Of course your scenario could also be plausible but in order for anyone to accept that also you would need to provide a motive for that. What do they stand to gain considering all that she might loose regarding negative publicity and placing herself in a life-threatening situation?
Either way, there is always something to learn from life’s predicaments. We are all bound to be parents or guardians of girls one day and we really need to teach them how to comport themselves and not to be naive. Of course our boys the same.
Catherine,
Your point about judges using ethics is why many people get convicted even though legal are not guilty. I prefer to see that as a flaw and the bad side of the legal system. Just like juries disproportionately convict black men if they are the accused and their accuser is a white woman.
Why are you disgusted by 19 year olds fucking 49 year olds? In Ghana 16 year old marry old men. In our traditional system, older men get to pick young girls as young as 16(sometime 12) for marriage. Where is your disgust in that? Aside from that 19 year old sleep with their sugar daddies for money, trips and gifts. Legon girls are notorious for that. It’s an acceptable practice in Ghana.
If he manage to seduce her or charmed her into having sex against her willpower, is that rape?
Better piece …such an intelligent analysis..thumbs up Mannesse..”let us my to be quick in judging..always embrace it can happen to anyone..Shalom!
Chris, let me ask you this. Can consent be withdrawn after the fact? I believe some women do this for myriad of reasons. Do you believe it?
I am lost; rephrase the question please!
@Manassehatsu from what i heard earlier the young lady in question is not from a poor home neither someone who’s suffering. So tell me do u think she will frame KKD up just like that and to achieve what?. Listen we all love KKD and respect him alot but when something is wrong it is wrong. No one is judging KKD but it seems u are on his side but have u tot about the victims reputation as well.
Nonsense. I am not on his side. I just hate injustice more. Particularly the mob kind. He’s being lynched before he gets his day in court. That is what I hate. It’s simplistic to say because I refuse to join the lynching mob, I am on his side. That is crazy talk.
morality definitely has a role to play, but putting that aside, if KKD was not being mischievious, why would he ask the lady to come powder his face? were there nooo make-up artists paid to do so at the fashion show? at what point in time did he seek the consent from the young girl, was it before he invited her to the bathroom to powder his face pr when she got there? there is a 97% chance that he raped the girl. the girl is freaking 19 and probably never imagined she will be coerced into having s*x by a known and respectable man and thus had noo need to worry when asked to come powder his face. have you read the charge sheet? he knew what he was going to do and thus intentionally made his cousin and the cousin of the lady to sit in the living room, so he could say, two people were around, so why didnt she shout……….his past is a reflection of his present, it’s something he has been doing, taking advantage of his stardom to commit such a vicious act
With people like you around why do we need the courts? You without a shred of evidence have concluded his guilt. Fortunately your opinion means nothing. What sensible person agrees to go powder the face of someone they just met in a washroom of a hotel room? Is the girl that naïve? Is she a makeup artists by profession? What made her an expert in powdering of the face that she walked into the bathroom without objecting to the request. Would she have gotten into a car of a stranger on the street too? What of the girl’s cousin? Do you believe she would have sat quietly through the raping of her cousin without shouting or screaming for help? Do you want us to believe the girl kept quite during the rape when she fully knew her cousin was in the living and that the slightest noise or cry for help would have gotten her attention in the living room and subsequent help? Ask anyone who has stayed at African Regent Hotel, the bathrooms are not sound proof. Even cracking a fart in the washroom can be heard from the living room. If the girl was being forced even a kick against the walls would have made enough noise for those in the living room to hear. A simple NO could have been heard in the living room. That is if she truly resisted. I don’t buy she resisted in her mind tosh. When you are being forced to do something against you wish, you used all means necessary to resist. Especially when you know help is just next door. A yell of ‘stop it’ would have ended the whole mess. Now she want us to believe she didn’t consent?
Do you know what buyers regret mean? Do you believe sometime people attempt to withdraw their consent after closing a deal?
I am certain you know what a buyer’s remorse mean?
How interesting it is; that so
many people have different opinions about this KKD’s drama. One thing we do know
now is that there was sex between a grown up man and a young adult lady. What
is missing is, was it consensual ok?
Right this refined man and
probably the most recognisable face in Ghana’s show business thought it was
consensual. Then this vulnerable young adult (lady) is disputing it that there
wasn’t.
Who is telling the truth, we don’t
know yet. So the moral question is what is it that this famous person actually
wanted from this young person? The idea that she willingly went to his hotel
suite and they drank together does not necessary means that there should be sex
if the minor wasn’t interested. What most people have forgotten is that even at
the point of entry or penetration a woman can say no and that’s it. And anything that happened there after, bang;
you are a dead man walking. I suspect KKD is aware of this simple basic rule.
Check KKDs posting on his facebook recently on this issues (June 13, 2014 )
One thing being ignored by most people is the definition of consent and how consent for carnal knowledge can be obtained under the law of the land (Ghana). No matter how absurd that definition is in other countries have no role to play in the outcome of this saga. I would appreciate it if anybody studying law in Ghana would be able to explicitly define consent with regards to rape under the laws of the Republic of Ghana.
Innocent until proven guilty, seems almost everyone has forgotten that.