sexual health and human rights in the african region - The ICHRP

(d) where the victim is under the law not recognized as capable of appreciating the
nature of the sexual act, including where the victim is at the time of the sexual
act-
(i) asleep
(ii) unconscious
(iii) in an altered state of consciousness, including under the influence of any
medicine, drug, alcohol or other substance, to the extent that the
victims consciousness is adversely affected;
(iv) a child below the age of 12 years; or
(v) a person who is mentally disabled.
[32] The list of situations that indicate lack of consent to sexual penetration under the
South African Sexual Offences Act is intended to take away the focus on use of
physical force as the only evidence of conduct constituting rape. Non-physical
threats, or inducements or manipulation also suffice as conduct constituting
rape. In this way, the South African Act is a departure some of the traditional
formulations of rape that convey the notion of use of physical force or threats
thereof as essential requirements of rape. Among the sampled countries, Eritrea
and Ethiopia have rape laws that define the means of procuring rape restrictively
as to promote the use of violence or absolute inability to resist rape as essential
elements of the crime of rape. Article 589 of the Eritrean Penal Code formulates
part of the actus reus of rape in terms of compelling a woman to submit to sexual
intercourse through ‘use of violence or grave intimidation, or after rendering her
unconscious or, incapable of resistance’. 584 Requiring grave intimation or
incapacity to resists on the part of the victim is obviously generous to the
perpetrator and unduly restrictive of the human rights of the victims.
5.4 Husband’s Immunity against Prosecution
[33] Historically, in all African jurisdictions, colonial rape laws granted immunity to
husbands against prosecution for raping their wives based on the legal fiction of
treating marriage as implied consent to sexual intercourse. In the post-colonial
era, the norm has been to retain the immunity. In some statutes, the husband’s
immunity can readily be inferred from the definitional elements of the crime.
Section 589 of the Eritrean Code says:
(1) Whoever compels a woman to submit to sexual intercourse outside wedlock, whether by the
use of violence or grave intimidation, or after having rendered her unconscious or incapable of
resistance, is punishable with rigorous imprisonment… 585
Section 130(2)(a) of the Tanzanian Sexual Offences Act says:
584 Ethiopia.
585 See also section 620(1) of the Ethiopian Penal Code.
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