Continued from: https://www.worldpulse.com/community/users/ikirimat/posts/97046
Part II – Sexual Offenses.
Rape laws largely translate consent against the relationship the woman has to the man even tough consent is supposedly defined as women’s agency and control in sexual encounters to decline or accept the male proposal. That is, a woman falls into different categories of consent depending on her relationship to the alleged man and his desire for her, not based on her expressed agreement in talk or comportment to the sexual act (Mackinnon, 1997:44-5). Consequently, marital rape, rape of sex workers, and rape where a prior or current relationship exist often become sanctioned rather than protected against by the law. It is also problematic that rape law is often centering on the element of ‘force’ induced by the perpetrator rather than that of consent. The Bill has adopted a language that is more suitable to the times. Compared to the old section (123) on rape in the Penal Code Act the Bill adds clause 2(3) that handles marital rape. However it presents it so that marital rape becomes zero-summed to ‘a sexual act without consent’ and thereby marital rape receives a punishment of minimum one year whereas rape is penalised with life imprisonment. It has been argued this becomes problematic as it differentiates and creates a value-order between rape cases depending on the relationship between perpetrator and survivor. While a complete removal of the caveat in the rape clause which degrades marital rape to ‘a sexual act without consent’ seems like the only way to go if the Sexual Offenses Bill is to protect all people from experiencing rape, doing so might result in the bill not being passed.
Therefore advocating for more specification of marital rape by adding aggravated factors and raising the minimum level of the penalty might be the threshold for social and political acceptance. Furthermore, it would be recommendable to move towards a definition of ‘sexual acts forced upon a partner within an intimate cohabitate relationship’ as to provide protection for newer forms of intimate relationships. In line with this the provision of personation, as given under clause 2, should also become applicable to all cases of personation of any persons who have regular sexual partners, including cohabiting couples. There is also a need to streamline the penalties for rape as to avoid the creation of a value-order between rape cases upon the relationship between offender and survivor
3. Aggravated Rape:
This is a completely new provision that the Bill introduces. The justifications for the addition come from the knowledge that, despite the palpable harm induced by any form of rape, there are certain circumstances that make it a more aggravated crime. However, while this clause is generally justifiable there is a need to look deeper at some of the suggested circumstances. By making perpetrators who are living with HIV/AIDS part of aggravating circumstances of rape it is feared that already existing discriminatory practices and stigmas are exacerbated. This also goes against public policy dealing with HIV/AID populations.
4. Attempt to Commit Rape
This repeals section 125 of the Penal code act. However, the only alteration that has been made in this case is the incurred punishment. Whereas the Penal Code Act deemed “attempt to commit rape” to be punishable with imprisonment for life with or without corporal punishment, the present Bill constitutes it to be liable to imprisonment not less then five years.
5. ‘Administering Substance with Intent of Committing A Sexual Act’
This is a new introduction made by the Bill that cannot be described as anything but crucial and timely. Date rape and the usage of intoxication by different types of drugs and alcohol are on the rise, but there is currently no provision in the Penal Code Act to penalise these sexual offences. When survivors of sexual violence were intoxicated they are generally discarded and rather blamed for what happened to them. Instead of penalising the perpetrator who abused someone’s trust and intoxicated them to a state where they could commit a sexual act with the person in a state of low defense and consciousness, the existing legal system places the responsibility on the survivor for not being ‘careful’ enough and for allowing herself to be in a situation where this could occur. With this new provision it becomes possible to move from this victim-blaming praxis to penalising the intent of perpetrators who uses intoxication to disarm people they intend to abuse sexually.
6. Sexual Assault
While this new section introduced by the Bill has a clear justification and linkage to the fact that sexual offences also takes the form of sexual assault and that this has to be provided for in the law, it introduces contestation as this provision is overlapping with the definition of a ‘sexual act’ which in turn is used to prosecute for rape. Thereby the Bill renders it impossible to delineate between rape and sexual assault, given that both the definition of ‘sexual act’ and ‘sexual assault’ mentions the same incidences as seen in “direct or indirect contact with the anus, breasts, penis, buttocks, thighs or vagina of one person”. Unfortunately this entails that there is a need to go back to the drawing board and clearly tease out what should be conceptualised as a sexual act as it is used for rape compared to the provision for a sexual assault. Another issue arises when analysing this provision, namely how the framing of a sexual assault coincides with a moralising language in how it states that a sexual assault is an act done “with the intention to insult the modesty of that other person”. Hence, the problem is not that someone has experienced a violation, but rather that the morality of that person has been tattered. This is indicative of how deeply rooted the notions of moral sin is while discussing sexuality. It is therefore recommended that ‘modesty’ be removed
7. Sexual harassment
This is another highly relevant newly introduced provision by the SOB considering that sexual harassment is recorded at high levels in many work environment and sectors without any legal room for it to be tried. Thus, clause 7 serves as crucial justification and point of reference from where cases of sexual harassment can be tried and it could furthermore be a source from where policies against sexual harassment in both workplaces and learning institutions get developed. However, it would be advisable that it becomes cognizant of how sexual harassment also increasingly takes the form of sending messages, images, videos, and other material of sexual content.
8. Sexual Offences Relating to Position of Trust And Persons In Position Of Authority
This is another new provision that the SOB has introduced against the backdrop of reports on sexual assaults and harassment in learning institutions. The recent allegations of Makerere lecturer, Dr Swizen Kyomuhendo and other university staff abusing their positions of power and authority to force and pressure students into sexual acts, more popularly named ‘sex for marks’, is without a doubt a clear indication and justification for the need to legalise against sexual offences committed by persons in position of trust and/or authority. In the wake of this, Makerere University undertook an investigation to address the allegations of increased sexual harassment at its tertiary institution. A lecturer made the following statement: “Women loitering around with their open thighs is not okay… these are devils, little temptresses who harass innocent, defenseless lecturers” (Makerere University, 2018). While the report did not find any causality between females’ dress and the advent of sexual harassment, it is evident that this is still a broad-based perception that flourish within not only institutions of higher learning, but within the society at large despite the various reports that show that men are using their relative power (monetary and positional) to force women to have sex with them for the advancement at workplaces or to not be failed in their classes . This victim-blaming indisputably works to protect perpetrators whilst victims are further stigmatised and violated by mistrust and discrediting campaigns. Hence, it is a way of remaining patriarchal control and dominance over women’s bodies and to castigate them further if they do not accept the patriarchal order (Tamale, 2014:174). Yet, the same recommendations that were given for clause seven holds here. That is, it is a highly relevant and adequate addition, but it should also take note and criminalise the rising form of sexual harassment and assault occurring through sending messages, images, videos, and other material of sexual content. (To be continued)
*Extracted from JUSTIFICATION AND RECOMMENDATIONS FOR THE ENACTMENT OF SEXUAL OFFENCES BILL, 2015, (no. 35)* (Akina Wa Mama)*