General Introduction

           Sexual offences have been classified in the Cameroon Penal Code under non-fatal offences against the person and the family. Sexual offences are those having sexual gratification as the offender’s predominant or overt motivation in their commission. Some of these offences take the form of sexual aggression, consisting as they are of injury and affront to a non-consenting person (e.g., private indecency, rape). Others are breaches of sexual taboo, and are punishable even if the other party gave consent. Examples of this group of sexual offences are immoral earnings, prostitution, homosexuality, sodomy, bestiality, indecency with young people, and intercourse with severely subnormal persons such as idiots and even imbeciles. It is essential in this work to examine some of the sexual offences alongside some other immoral offences proscribed by the Cameroonian legislator. Among the plethora of sexual offences proscribed by the Penal Code, the following are outstanding. Rape[1], Incest[2] Prostitution[3], Indecency to child under sixteen[4], Indecency to minor between sixteen and twenty-one years and Homosexuality[5].

           The element of consent is generally the most important issue with regard to sexual assault.[6] Consent is a matter of the actual state of mind of the complainant.[7] Belief in consent is a matter of the mind of the accused.[8] Consent here applies to both the material element (actus reus) and the mental element (mens rea) of the offence. Consent by the victim can also form the basis of a justification defence to criminal conduct. Consent is most commonly used as a defence to sex crimes such as rape, and lack of consent is an element of most sexual offenses that must be proven beyond a reasonable doubt. The absence of consent must be determined on a subjective basis of the complainant by the reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred.[9] There is no obligation that the complainant expresses her lack of consent or her revocation of the consent before the actus reus can be made out.[10] In Cameroon, there equally exist other kinds of sexual offences that consent is irrelevant for its prosecution.

             In the crime of statutory rape neither the girl’s consent nor the man’s genuine belief that the girl is above the age of 16 are of any moment because the offence is formulated as a crime of strict liability. The statutory rapist is fictionally put on the same footing as the actual rapist. According to one commentator, the law on statutory rape is communicating the following message: “If you choose to have intercourse with a willing female who may be over or under the age of consent, you will be playing a game with the law as well as with her. If she is under age, you lose the game and will be condemned as a felon, regardless of what she may have told you and regardless of the reasons you may have had for believing her.”[11]

              By section 295 (1) of the Cameroon Penal Code, “whoever in any place, notwithstanding that it may not be open to the public, commits an indecent act in the presence of any person of either sex and without his consent shall be punished.” The prescribed penalty is imprisonment for from fifteen days to two years and/or a fine[12].

             The place where the offence is committed is immaterial. The section speaks of ‘any place’, that is, a public or a private place. That being the case the additional group of words ‘notwithstanding that it may not be open to the public’ is redundant though the phrase may, arguably, have been added merely for emphasis. The victim of the offence is the person in whose presence the indecent act was committed.

             The crime is denoted as ‘private indecency’ not because of any requirement that it must have taken place in private. The question of privacy of the place (the nature of the place, the likelihood of third parties coming upon the scene, the time of the act) is, as already observed, immaterial. The private nature of the offence refers not to the place or time of the act but to the number of persons involved. The act will not be treated as ‘private indecency’ where more than two persons take part or are present. The crime is a dual offence. It is capable of being committed by a man or a woman in the presence of a woman, or by a man or woman in the presence of a man. Indeed, the offence is capable of being committed by one spouse against the other, that is, one spouse can be convicted of committing an indecent act in the presence of the other spouse.

              Consent negatives a charge for private indecency. Absence of consent here is not simply a defence. It is an element of the actus reus of the offence, which the prosecution must prove. The offence is consummated only if the alleged victim did not consent to the indecent act being committed in his presence. Consent may be implied as where two people undress in a common changing room in order to change clothes or where they undress in a common shower room or a common bathing place in a stream to bathe or where a patient undresses in front of his treating doctor for a physical examination or a striptease in a night club or a client before a masseuse.

            Indecency to a child under sixteen is a separate crime under Section 346 of the Cameroon Penal Code and, there, the question of the victim’s consent is irrelevant. Further, indecency to any minor between the sixteen and twenty-one age bracket is also a separate crime under Section 347 of the Penal Code. It is therefore submitted that section 295 of the Penal Code is confined to cases where the non-consenting party is a person above twenty one years of age. Accordingly, the phrase ‘any person of either sex’ in section 295(1) of the Penal Code should be read to mean any adult person of either sex. Where the victim, though an adult (i.e., aged over twenty-one) is a severely subnormal person (an idiot, an imbecile) or even a lunatic and he ‘consented’ to the indecent act the proper defence open to the accused is not consent (for the insane or the severely subnormal person cannot in law give valid consent) but reasonable mistake; provided he did not know of the mental deficiency and had no reason to suspect it.

           On the other hand, an act is indecent if it is overtly sexual and would appear to the ordinary right-minded person in this country as an affront to modesty and privacy. Many traditional dances and a good many musical clips shown on television are sexually very suggestive. But they do not offend our customary standards of modesty or decency. Moreover, with the exception of bestiality and, controversially, homosexuality and lesbianism, no sexual act is per se indecent, nor are the human sexual organs in themselves indecent. Much depends on the circumstances of the defendant’s conduct, the relationship between the parties, the persistence of the conduct complained of, the age and sex of the complainant, the defendant’s intention and the interpretation that the other party puts on his behaviour.

            There is nothing intrinsically indecent in the act of sexual intercourse or in passionate kissing. But if A and B have sexual connection or engage in carnally suggestive kissing or in ‘heavy petting’ in the presence of C without his consent, both A and B can properly be convicted of an offence under section 295(1) of the Penal Code. They must be taken to have intended their act to be indecent given the circumstances and nature of the act since it is not decent and normal for such acts to be done in the presence of especially a non-consenting third party. Besides, not having consented to the act being done in his presence, C would in all probability be disgusted by the behaviour of A and B. Again the male and the female genitalia are not in themselves indecent. But if A in his birthday suit exposes his person to B without his consent or walks towards B making sexual signs or bodily simulating sexual intercourse or shows B a pornographic picture, A can be convicted of private indecency.

0.2. Definition of Key Terms

Consent

             In simple terms, consent means to agree to do something, or to allow someone to do something.[13] It can also be seen as a concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith. Agreement; approval; permission; the act or result of coming into harmony or accord. Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. It means voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers. Consent is implied in every agreement. It is an act unclouded by fraud, duress, or sometimes even mistake.[14]

             In the course of this research, consent will mean an agreement between a man and a woman to have sexual intercourse.

Sexual Offence

            Sexual offences are those having sexual gratification as the offender’s predominant or overt motivation in their commission.[15] Some of these offences take the form of sexual aggression, consisting as they are of injury and affront to a non-consenting person (e.g., private indecency, rape). Others are breaches of sexual taboo, and are punishable even if the other party gave consent. Examples of this group of sexual offences are immoral earnings, prostitution, homosexuality, sodomy, bestiality, indecency with young people, and intercourse with severely subnormal persons such as imbeciles and morons.[16] Thus, a sexual offence in this research will be seen as any offence as defined by the penal code or any penal law which is related to sex and considered as immoral and or indecent.

0.3. Statement of the Research Problem.

                 No penalty or measure may be imposed unless provided by law, and except in respect of an offence lawfully defined.[17] Again, no penalty may be imposed except upon a person criminally responsible.[18] Criminal responsibility shall lie on him who intentionally commits each of the ingredient acts or omissions of an offence with the intention of causing the result which completes it.[19] These cardinal penal provisions apply same to sexual offences in Cameroon. Deducing from the provision of Section 74 (2) of the Penal Code, to be prosecuted for a sexual offence in Cameroon, it must be established that the suspect intended the act to complete the result and the other party never gave in her consent. In order to achieve a conviction in a case involving alleged crimes of sexual contact, the prosecuting authority must prove to the court that the defendant did not have a reasonable belief that consent had been given by the complainant. Sexual acts are usually committed behind closed doors and there becomes a problem only when one party claims not to have consented at the act. The Law and Courts rely on the absence of a free consent to prosecute sexual offences.  It is difficulty to establish consent because most often than not, parties do give their consent verbally.

0.4. Research Objectives

            Under this heading, we shall have the main and the specific research objectives to guide the research.

0.4.1. The Main Research Objective

           The main objective of this research is to examine the role of consent in sexual offences under the Cameroon criminal law.

0.4.2. Specific Research Objectives

• To first examine the concept of consent in criminal law.
• To identify and examine the various sexual offences in Cameroon with particular attention to the role of consent in such offences.
• To analyse the challenges faced in the prosecution of sexual offences.
• Also, to suggest some important recommendations and law reforms.

0.5. Research Questions.

        This research makes use of both the main and the specific research questions.

0.5.1. The Main Research Question

What role does consent play in the prospection of sexual offences?

0.5.2. Specific Research Questions

• What constitutes consent in criminal law?
• What are the various sexual offences under the Cameroon Penal Code?
• What are the challenges faced in the prosecution of sexual offences?
• Are there any valuable reforms in the law on sexual offences?

[1] Section 296 of the Cameroon Penal Code

[2] Section 360 of the Cameroon Penal Code

[3] Section 343 of the Cameroon Penal Code

[4] Section 346 of the Cameroon Penal Code

[5] Section 347 of the Cameroon Penal Code

[6] R v. James, 2011 BCSC 612

[7] R v. Ewanchuk, 1999 CanLil 711 (SCC) [199] 1 SCR 330.

[8] R v. Dippel, 2011 ABCA 129 (CanLII), 281 CCC (3d) 33.

[9] Ewanchuk, ibid.

[10] Ewanchuk, supra.

[11]  HM Hart, ‘The Aims of the Criminal Law,’ 23 Law and Contemporary Problems 1959, p. 430.

[12] Of from 10.000 to 100.000 francs. The penalty is doubled where the offence was committed under any of the following circumstances: the indecent act was accompanied by physical assault, the offender had authority over the victim, the offender has by statute or custom custody of the victim, the offender is a public servant or minister of religion, the offender was helped by one or more others in the commission of the offence. See, sections 295(2) and 298.

[13] Cambridge Advanced Learners Dictionary, 3^rd Edition.

[14]  Black’s Law Dictionary by Henry Campbell Black, M. A. 6^th Edn. P 305.

[15] Carlson Anyangwe, ”Criminal Law in Cameroon: Specific Offences”, African Books Collective, (2011) Mankon, Bamenda. P 499.

[16] Ibid.

[17] Section 17 of the Cameroon Penal code.

[18] Section 74(1) of the Penal Code.

[19] Section 74(2) of the Penal Code.