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The law sanctioning rape of children law general essay

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The law sanctioning rape of children in Mauritius is of French inspiration. At first, the French law did not provide for any definition of the offence but the jurisprudence and doctrine, notably well known authors, such as Garraud and Garçon attempted to define it[1]. Gradually, the law has evolved and the French legislator devised a proper definition of rape. Where the crime is committed against young children, harsher penalties are provided for accordingly[2]. However, the Mauritian law did not experience any similar evolution. In a democratic country like Mauritius, championing children’s rights and being a state party to the Convention on the Rights of the Child, no definition of what constitutes rape of children is provided for in the domestic law. The Criminalcode simply criminalises ‘ sexual intercourse with a minor under the age of 16’ years by a maximum penalty of 20 years[3]. This provision is expressed in an inexplicit manner and no clear meaning is given for ‘ sexual intercourse’. Over the years, case law has been relied upon by the prosecution to devise the elements of the offence. This represents a prime loophole in the law. However, arguably those elements can therefore be crafted based on sexual activities children are currently being subjected to in society. Nowadays, it is undeniable that young girls are notoriously victims of rape and other sexual offences[4]. Nonetheless, the gruesome reality is that sexual offences are increasingly being perpetrated on young boys as well[5]. Although, the pervasiveness of such crimes might not be as severe as for girls, they still represent a major scourge. To that effect, the court can create precedent by not restricting the definition of rape only to penile penetration of the vagina anymore. This would be in the interest of children altogether, including boys, since the ultimate aim should be to safeguard them from sexual abuse, irrespective of sex.

1. 1 THE ELEMENTS OF RAPE

1. 1. 0 PENETRATION

Broadly, the three main elements establishing rape of children are; the act of penetration, the intentional element and absence of consent. The relevance of the third element varies according to the age of the child; at one end of the spectrum, where the child complainant is under the age of 16 years and at the other end of the spectrum, where the latter is 16 years or above. Penetration encompasses only vaginal penetration of a child by a penis[6]. Oral[7]and anal penetration[8]are categorised as different offences respectively. This being an essential element the crime, it makes the offence a gender specific one, where the complainant can only be a girl. Normally, forensic evidence confirms the act of penetration, especially where the accused is denying it[9]. However, if at the very outset of the case, the accused concedes to have had intercourse with the child victim[10], then the element of penetration is deemed to be systematically established.

1. 1. 1 THE INTENTIONAL ELEMENT

Historically, the drafters of the French Penal Code made no specific mention of the element of criminal intent mainly because it is so indisputably linked with penetration committed with violence that once the latter is proved, the mens rea is automatically established[11]. Accordingly, the same trend has been adopted in Mauritius where it has become fairly easy for the prosecution to prove the intention of the accused and to eventually secure a successful conviction[12]. This undeniably acts in favour of the child complainant.

1. 1. 2 ABSENCE OF CONSENT

Where rape is committed upon a child, as opposed to rape of an adult, the prosecution bears no burden of proving that sexual intercourse was non consensual. In both the Criminal Code[13]and the Child Protection Act 1994[14], consent is disregarded where rape is committed against a child. Normally, once the prosecution has proved that the child is under the age of 16 years[15], coupled with penetration and the criminal intent, the offence is automatically constituted. By making rape of children a strict liability offence as to age, this demonstrates the intention of the legislator to protect young girls who lack the requisite maturity to realise the consequence of indulging in sexual intercourse. This was highlighted in the case of Bahorun v State[16]. It was also explained that the age gap between the child and the offender has further propelled the enactment of such provision so as to prevent the latter from taking undue advantage of the immaturity of victims. However, under the Criminal Code, consent is disregarded only where the child complainant is under the age of 16 while in the CPA, it also applies to children who are 16 years old or above since the word ‘ child’[17]is defined as an unmarried person under the age of 18 years. The age of consent to lawful sexual intercourse in Mauritius being 16 years[18], it can be deemed the aim of the legislator when drafting the Criminal code was to entitle a sexual autonomy to those who were 16 years of age or above. In this respect, consent will be a relevant element of the crime where the child complainant is 16 years old or above. Nonetheless, this still represents a major discrepancy since confusion might arise and it can, in turn, hamper effective application of the law.

1. 2 CO-AUTHORSHIP AND COMPLICITY

A peculiarity about rape of children in respect to co-authorship and complicity is the strict element of penetration. For an accused to be convicted as a co-author, he needs necessarily to have participated in the act of penetration[19]. Therefore, it infers that mere holding of hands or keeping watch only amounts to complicity. This interestingly, proves to be very helpful for the prosecution since it alleviates the notoriously difficult task of distinguishing between co-authorship and complicity.

1. 3 RAPE TRIAL

Normally, in Mauritius rape cases are tried in the Intermediate Court before two magistrates[20]. Where rape is committed by two or more individuals, upon the instruction of the Director of Public Prosecution, the case can be tried by a judge without a jury at the Assizes. This highlights the seriousness of the nature crime of rape, especially when it is committed against children. Additionally, the fact that rape trial of children may be heard before the Supreme Court, the court vested with the highest judicial authority in Mauritius, further accentuates the particular heinous nature of the offence[21].

1. 4 DEFENCE

In Mauritius, the main defence available to the accused where he is charged with sexual intercourse with minor under the age of 16 years is ‘ reasonable’ belief that the child was above 16 years of age[22]. Much emphasis is laid on the word ‘ reasonable’. The case of Police v Marc Stephan Bernard Louise[23]described how this defence was rejected since the accused and the victim were neighbours and the former used to drop the latter to school and knew her for a long time. Hence, it was very unlikely that the accused did not know the age of the complainant. The law has meticulously been drafted to such an extent that the accused cannot escape punishment so easily.

1. 5 EVIDENTIAL ASPECT OF RAPE

In Mauritius, although the law criminalising rape of children is of French inspiration, the law of evidence has largely been inspired by English law[24]. Evidence plays a preeminent role, especially in respect to the nature of the crime. At times, a lack of sufficient evidence can prove to be fatal for the prosecution. As regard to the rape trial where the complainant is a child, the prosecution might encounter additional challenges owing to the young age of the victim.

1. 5. 1 EVIDENCE OF CHILDREN

Generally, the rule is that all witnesses in criminal cases ought to depone under oath in pursuance with section 106 of the Criminal Procedure Act 1853[25]. However, very often, it may happen that a child complainant does not understand the nature of an oath. This was problematic until special provisions had been made in the Criminal Procedure Act[26], allowing a child victim under the age of 9 years to give unsworn evidence in court. The gist of that particular provision depicts the legislator’s concern to provide optimal protection to young victimised children so as to best achieve justice. According to that same provision, a legal test has necessarily to be made by the Judge or Magistrate to ascertain that the child has sufficient intelligence to make a rational statement on the subject of the trial. Besides, the test has to be on the court record and non compliance with such criteria renders evidence of the child inadmissible[27]. This implies that a balance has been stricken between protection of the child complainant and the competing rights of the accused, where the latter can possibly appeal on the ground that such a test has never been undertaken.

1. 5. 2 CORROBORATION

Normally, the testimony of one witness is sufficient for a court of law to come to a decision[28]. However, in respect to the evidence of victims of sexual offences and children particularly, corroboration is required as a matter of practice because of the nature of such evidence[29]. Evidence given by children in general is considered as unreliable since due to their ‘ childish imagination, suggestibility or fallibility of memory’, they might not always tell the truth[30]. At times, this can prove to be unfairly prejudicial to the accused. When the child complainant testifies, the court can act on the latter’s evidence alone, however, if corroborative evidence is available, it will be taken into consideration[31]. This implies that even if no corroboration is available, the victimised child would not be prejudiced simply because of her young age[32]. Where the victim successfully convinces the court of being truthful, there is no reason for her testimony to be disregarded. Normally, with regard to the delicate nature of the offence and the way it is committed, corroborative evidence is not available. Bearing this in mind, the legislator has deemed it of utmost importance to maintain the flexibility of the law of evidence in order not to impede fair administration of justice. On the other hand, corroboration warning however is required as a matter of law when the child victim testifies in court[33]. The judge has a duty to warn the jury of the danger of acting on uncorroborated evidence of children complainants since owing to their childishness, evidence gathered might not be very reliable. In the absence of such warning, conviction can even be quashed[34]. It can be observed that successful prosecution of the offence rests largely on how effectively the judge fulfils his responsibility. Hence, where such criterion has properly been complied with by the court, it would be fairly easy to prove the case beyond reasonable doubt and practically no ground of appeal would be left for the convicted offender.

1. 5. 3 DISTRESSED CONDITION OF THE CHILD COMPLAINANT

The distressed condition of the child victim may only amount to corroborative evidence unless it has been independently witnessed by another person immediately following the rape[35]. Such strict requirement will prevent the defence from pointing fingers at the evidence of the prosecution, especially on the ground that distress has been simulated by the child.

1. 5. 4 EVIDENCE OF CONSISTENCY

If shortly after the occurrence of the rape, the victim narrated the incident to a family member or any other person, this can be admissible as evidence in court. However, it would not be used to prove that the accused committed the alleged offence nor to corroborate the version of the child but it would simply show consistency of the victim’s testimony in court with her aforementioned conduct[36]. This is an exception to the rule against self-serving statement. It can be observed that the admissibility of such evidence is to bolster the credibility of the child complainant, upon whom normally the defence casts a suspicious eye without least consideration. Following such an analysis of the law, it can therefore be inferred that the law of evidence in Mauritius has been crafted in such a way so as to achieve best evidence when the child complainant testifies in court. Nonetheless, it is essential to underline that the law has also been very finely balanced in order to ensure a fair trial to the accused and to avoid any perceptible miscarriage of justice.

TEXTBOOKS

Sweet and Maxwell, (2012). Archbold, Criminal Pleading, Evidence and Practice. Mayaud Yves, (2012). Code Penal, Dalloz, 109eme Edition. Collin Pritchard. The Child Abusers, Research and Controversy.

REPORTS AND DOCUMENTS

Akbar Khan, Director, Legal and Constitutional Affairs Division, Commonwealth Secretariat, London UK; Victims and Witnesses Protection: A Commonwealth Perspective. 2nd Regional International Association of Prosecutors Conference for The Africa-Indian Region, Mauritius, 26-29 August 2012Crime, Justice and Security Statistics, 2011 (Police, Judiciary, Prisons and Probation)Pierre Rosario Domingue, Evidence and Procedure, (Document University of Mauritius Library)Parliamentary debates, National Assembly; The Child protection Bill, second reading (8 November 1994)

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CONSULTED DISSERTATIONS

Gooljar Minakshi (2007), ‘ An appraisal of the Mauritian Child Protection Act’, (LLB) Réduit University of MauritiusM. I Maghooa (1990), ‘ The protection of the child under the criminal law’, (LLB) Réduit University of MauritiusSheik-Fareed, Rubina (1996), ‘ The law of rape redefined’, (LLB) Réduit University of Mauritius

FURTHER READINGS

Dr Gunputh, Criminal Law, Viol ( Document of University of Mauritius Library)Alisdair Gillespie (June 15, 2001), New Law Journal, A need for Statutory RapeCorby Brian (2000), Child Abuse: Towards a Knowledge baseBarnett, Ola (2005), Family Violence across the lifespan. An Introduction

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