Men who stealthily engage their partners in sexual acts while the women are asleep, risk being charged with an offense of rape, according to a proposed law under enactment in Uganda.
The Sexual Offenses Bill 2019, currently before the Rules Committee of Parliament, also proposes that men who are found culpable of such an offense should be on conviction slapped with imprisonment not exceeding eight years.
According to Uganda Women Parliamentary Association (UWOPA) -the proponents of the Bill, the object of this Bill is to enact a specific law to consolidate all laws relating to sexual offenses for the effectual prevention of sexual violence; to enhance punishment of sexual offenders, among others.
From the proposed legislation (in it’s current form), any sexual act whether it is between married couples or not, performed while another person is incapable of consenting, is automatically interpreted as rape.
Section 2 of the Bill states that; (1) A person who performs a sexual act with another person (a) without that other person’s consent; or (b) incapable of consenting to the sexual act commits an offense and is liable on conviction, to imprisonment for life.
Section 2 (3) of the Bill says also proposes that a person is incapable of consenting to a sexual act if at the time of performance of the sexual act he or she was -asleep, unconscious, under influence or mentally impaired.
Section (2)2 also denotes that an assertion of having obtained consent of another person shall be negated where alleged consent was obtained by threats, duress, under influence, misrepresentation or intimidation of any kind.
“A person who attempts to perform a sexual act in circumstances referred to in subsection (1) commits an offense, and is liable on conviction, to imprisonment not exceeding eight years” -Section 4 of the proposed law says.
Besides penetration, a sexual act according to the bill means contact or situmulation of a person’s sexual organ with another person’s organ or object.
Consent to sex, according to the proposed law, is however not guaranteed during a sexual act since the Bill includes a contentious provision that provides for withdrawal of consent during a sexual act.
Section 36 reads; Not withstanding that a person has consented to performing a sexual act with another, he or she may withdraw such consent at any time before or during the performance of the sexual act.
However, UWOPA Executive Director Mary Harriet Lamunu says, there is a discussion within members to have the provision relating to the matter of consent in relation to this legislation amended to exclude married couples. Upon the bill’s introduction, majority of members mostly men, expressed discomfort over consent on sex among married couples.
The Bill also criminalizes sexual assault, harassment, detention with sexual intent, sexual acts with a person in custody, preforming “unnatural offenses”, incest, child prostitutions, child marriages, child sex tourism, and transmitting “material of a sexual nature” to another person without his or her consent.
The Bill is however silent on prostitution among adults perhaps paving way for legalization of the practice. Mary says during consultation on the bill, a group of women under an association of sex workers pleaded that the practice should not be criminalized because it has economic dividends and is a source of livelihood for some people.
The Sexual Offences Bill (a private members bill) was first read in parliament on November 26, 2019 and referred to the Rules and Parliamentary Committee for processing. It’s justification is that the existing law -the Penal Code is outdated and the ingredients constituting the offenses are narrow given that they do not reflect the evolving trends in social attitudes, values and sexual practices.
