[ 2015-04-23 ]

Diaries Of an Oguaa Fisherman: Two discharges that made KKD frown and laugh in 4 months
Discharges abound in all spheres of life. While
one discharge can spell doom for a person, the
other discharge can breed enormous dividends for a
total turn around.

What has become strikingly revealing in the KKD
rape saga that has lingered for a little over four
months are two clear discharges; one, a discharge
that lands you in trouble and the other , a
discharge that sends an army of good news and
relief to you.

Such were the twists and turns of the KKD saga.
First, he does one of the discharges himself after
he admits explicitly that he had sex with the
19-year-old lady but not without the consent of
the ‘victim’. This discharge changed the
sleeping place of the Entertainment icon who
battled the case until finally, his lawyers
secured bail for him.

The other discharge; the discharge that was not
caused by KKD but by the Judge who sat on the case
following a letter written by the victim to state
prosecutors, saying they could no longer count on
her testimony to prosecute the celebrated
entertainment icon; it was her desire to see the
charges dropped. The two-page letter by the
19-year-old cited the “media frenzy” that
followed the arrest of KKD and the unceasing buzz
and social media posts which she described as
insensitive, for her decision. She said she was
unable to continue cooperating with the police on
the case.

I was greeted with this news shortly after
journeying throughout the night on the sea without
much catch, so I was intrigued but concluded that
the conclusion reached by the court was not really
surprising. It just kept long in arriving but
however long it would have taken, the same
conclusion would have arisen.

I went to the market square which was flooded with
arguments on the decision of the court in the KKD
matter.

From a distance, I stood to eavesdrop on the
conversation from the market square, and it clear
to me that the argument was based on two words:
morality and legality. I listened with rapt
attention to the passion, flare and energy behind
the argument.

My deduction from the diverse arguments was that
the word CONSENT is a very technical word that
proves very stubborn even in court in a matter
that ‘you and I were not there’.

I am not a lawyer but only a fisherman whose tools
are the net, the canoe and the paddle, but I
believe, it won’t be bad if I shared the little
‘pint of law’ in my fisherman blood.

In The State v. Gyimah, the facts proved by the
prosecution was that the accused was a school
teacher resident in the village and the girl was a
school girl staying with her parents in the same
village.

On the day of the alleged rape, the girl was sent
on an errand by her mother when the accused called
her in his room when she passed in front of his
house. Evidence adduced at the trial proved that
the accused had sexual intercourse with the
alleged victim of the offence and that there was
full penetration. The only issue was whether or
not there was consent. The court held that the
case for the prosecution had not been proved
beyond all reasonable doubt and so the accused
could not be held guilty of rape. The judge who
presided over the case, submitted:

“Firstly, there is some inherent improbability
in the girl’s story that she was forced and that
she shouted in distress. This is a house in which
other tenants live, situated in an open place with
people constantly passing and there were other
residents such as the landlord of the house who
were never called, inmates of the house testified
that they were in the house that morning and that
they never heard any shouts. I find their evidence
convincing and I believe them.

Secondly, the conduct of the girl herself
indicates her willingness. She asks the court to
believe that she walked straight into accused’s
room in all innocence. There is no evidence that
the accused induced her by a ruse or deceit to
join him in the room. There is no evidence that
when she shouted the accused attempted to place
his hand on her mouth.

…Though pressed by the accused on the shoulder,
[the girl] “had the free use of her limbs and
never slapped or attempted to kick the
accused…” The girl only put up an act by means
of false cries, out of a sense of shame when her
mother and sister caught her “in a shameful and
disgraceful act red-handed.”

Third, the doctor’s report indicated that the
girl’s hymen had been previously perforated and
showed no recent injury and no bruises or violence
either to the hymen or elsewhere on the girl.

Fourth, from the evidence, the girl’s mother’s
first reaction was anger, to which the girl
remained silent, he said, “her silent conduct
satisfied me as being consistent with the accused
story that she consented to the act.”

Thus, in the judge’s view, so long as nobody in
the accused person’s house heard the complainant
shout, the complainant did not struggle with the
accused, there was no evidence of recent
perforation of the complainant’s hymen and no
bruises on the complainant and the complainant did
not speak up after her mother discovered her and
the accused and asked what the complainant was
doing in the accused’s room, then the
complainant had consented to the sexual act.

However, it is also probable that all these facts
may have existed and still the complainant would
not have consented to sexual intercourse with the
accused person.

Another rape case, in which the issue turned on
consent, is Agbemanya v. the State.

In that case the alleged rape victim, a girl of
seventeen years, lived with her parents and the
appellant was a relation to the mother of the girl
and frequently visited them.

The case of the prosecution was that the girl
accompanied the accused to visit his friend’s
house. When they got there, they entered a room
which was unoccupied.

The appellant, undressed, locked the door,
struggled with the girl and had sexual intercourse
with her. The accused then took her back home. The
accused admitted having sexual intercourse with
the girl but maintained it was with her consent.

He said although she had put up some resistance
she later yielded voluntarily to the intercourse.

Though convicted by the trial court, the
appellant’s appeal was allowed. The appellate
judge said: “Was the struggle which took place a
genuine registration of non-consent?” He asked
if it was credible that the girl sat and watched
the accused strip off his clothes and lock the
door thereafter, if she had not consented. Thus,
the judge expected the girl to have proved that
she tried to escape when she saw the accused strip
off his clothes and lock the door. The judge also
said although the girl’s pant was bloodstained
they were not damaged because she took them off
herself for the purpose of the intercourse. The
trial judge, according to the appellate judge, did
not direct himself and the assessors on the key
issue, which was, “which of the two conflicting
accounts was most probable? A question of
fact.”

The evidence according to the appellate judge,
when taken as a whole, both for the prosecution
and the defence, established a very strong
probability that there was such consent. The
appellant was, therefore, in the judge’s view,
wrongly convicted.

So you see, this ‘animal’ called CONSENT has a
very tough skin and proves very difficult but one
thing remains clear, that before the matter gets
to the court of law, the one who discharged
whether appropriately or inappropriately might
have to endure until there is another discharge
that can bring some relief to him.

Please, rape is a huge crime and a grave sin
against the soul of the person alleged to have
been raped.

Before you discharge, know where you discharge and
discharge appropriately.

Source - Richard Kwadwo Nyarko

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