Re-Writing "Rape" (I) - An Acquaintence With The Crime Of Rape - A Definition

Lesego Nswahu Nchunga | Monday July 30, 2018 13:34

The articles that will follow will explore various elements that add up to the crime of rape, including consent, painting the picture of the problem of rape in Botswana, who rapists are, why rape is a national crisis, and how we are where we are with the crime of rape, as a nation, situating us in the recent arising global trends, and finally offering what needs to be done in order for us to move beyond where we are, and make a proposition of how we could possibly make an impactful difference in the rape statistics.

A starting point, in any discussion, is contextualising the problem, and not only naming it, but also defining it.

Fairly recently, in late June 2018, the Botswana Police Service released the statistics on rape over the year 2017. The report disclosed that in 2017, every month approximately 173 people reported that they “were raped” across the country.

The total number of people who reported rape incidents was 2,074. In 2016, a total of 2,052 rapes were reported while in 2015, the total was 2,163.

On July 19, 2018, the Botswana Police Service, in a ‘Media Release’ outlining statistics over President’s Day Holidays 13/07/2018 – 18/07/2018.

There were a total of 29 reported rape cases spanning the five-day period, compared to a total of 19 in 2017. This illustrates that in the last year, there has been a 34% increase in rape reports over this particular period.

Often, when the issue of “rape” comes up in a discussion, it is made to seem as if men don’t know what rape is. Rapists are usually depicted as helpless men, who have been taken advantage of.

Men, who are unable to control what is usually referred to as sexual urges, are usually depicted as powerless to the supposed seduction of women. So, for a moment, let’s indulge ourselves in a discussion that actually assumes that we perhaps do not have an understanding or even knowledge of rape, in the context of Botswana.

Starting point: Rape is a crime, defined in the Penal Code of Botswana, at section 141 as follows:

“Any person who has unlawful carnal knowledge of another person, or who causes the penetration of a sexual organ or instrument, of whatever nature, into the person of another for the purposes of sexual gratification, or who causes the penetration of another person’s sexual organ into his or her person, without the consent of such other person, or with such person’s consent if the consent is obtained by force or means of threats or intimidation of any kind, by fear of bodily harm, or by means of false pretences as to the nature of the act, or, in the case of a married person, by personating that person’s spouse, is guilty of the offence termed rape.”

There are a number of factors that arise from the Penal Code’s definition of the crime of rape. Firstly, and more put more simply, from a surface reading of the definition, rape is when an individual gets sexual gratification from penetrating another person, or from being penetrated by another person, without such other person’s consent.

Despite the general use of this provision, it is critical that we clarify that the Penal Code deliberately does not specify whether this is penetration of another person’s sexual organs.

This means, for example, if a man puts his penis into another person’s mouth, or anus or in between their thighs for sexual gratification, without the consent of that other person, this would be considered rape.

Secondly, the Penal Code specifies that if a person eventually gave consent, having been forced, or threatened or intimidated, this constitutes rape.

This is to say, if you keep asking someone to have sex with you and they repeatedly decline, but eventually agree from either being tired of saying no, or not having the strength to say no, or being scared to say no, or being told that if they say no, their partner would leave them for other people, or that if they say no, they will be beaten, then this constitutes rape.

The third, and in my opinion, most important element raised by the Penal Code’s definition of rape is consent. In Setswana, we would say, “tumalano”. Rape is sexual gratification of one without the consent of another. The element of consent is a powerful thread throughout this definition that it would be amiss to speak of rape without addressing consent. Consent is a critical part of proving that rape has occurred.

Finally, and most disappointing of all, despite all the above the Penal Code illustrates that rape cannot be committed by a husband against his wife, in Botswana.

At this point, having fully outlined the legal definition of rape in Botswana, I hope each of us, is considering the various sexual encounters we have had and that we intend to have, and that we have heard of, and honestly interrogating their legality. Please let the children read this.