Some commentators have suggested that consent may constitute a defence in the case involving the Bole SHS teacher and the student. However, the law is clear that consent obtained through the undue exercise of authority or influence is void.
Undue influence arises where a person exploits a position of power, trust, or authority over another person to obtain consent that would otherwise not have been given. As a matter of public policy, the law affords special protection to vulnerable persons and carefully scrutinises relationships characterised by an imbalance of power, such as that between a teacher and a student.
Section 14(c) of the Criminal Offences Act, 1960 (Act 29) provides that consent is void where it is obtained through the exercise of official, parental, or any other form of authority, and where such authority is exercised otherwise than in good faith for the purpose for which it is legally conferred. Such authority is deemed to have been unduly exercised.
Also, Section 14(g) of Act 29 states that consent is obtained by undue exercise of authority if it would have been refused but for that exercise.
The principle was illustrated in R v Nichol (1951) 20 L.R.G. 13. In that case, a 13-year-old schoolgirl was sexually assaulted by a man who had temporarily assumed authority over her while acting in place of his wife, who managed the school. The trial judge observed that the girl’s tender age, coupled with the authority and influence exercised by the accused, was likely to have diminished her resistance and impaired her ability to act freely. The court recognised that fear, respect, and awe of a person in authority could undermine genuine consent. The accused was subsequently convicted.
Accordingly, while consent may generally be a defence to certain sexual offences, the law does not recognise consent that has been procured through the undue exercise of authority or influence. In circumstances involving a teacher-student relationship, the existence of such authority is a relevant factor in determining whether any purported consent was truly voluntary.
Moreover, if the student is below the age of sixteen years, the issue of consent becomes legally irrelevant. Under Ghanaian law, a child under sixteen years lacks the legal capacity to consent to sexual intercourse. In such circumstances, the appropriate offence may be defilement, irrespective of whether the child appeared to agree to the act.
The central legal question, therefore, is not merely whether consent was given, but whether that consent was freely and voluntarily given without the improper exercise of authority, influence, or power.
By the 59th President of the National Union of Ghana Students (NUGS), Rashid Ibrahim, Esq.