THE NONCHALANT HOUSEHOLDERS’ BANE.

Consider the position of a hotel employee earning between GHS 800 and GHS 1,000 monthly, yet exposed to a potential custodial sentence of up to 25 years where, through inadvertence or failure to exercise the required level of diligence, that employee is deemed complicit in the defilement of a sexual minor.

This, sadly, may become the reality for numerous hoteliers and hospitality workers whose establishments are used for commission of the offence of defilement against children below the age of 16 years. The imposition of such stringent penalties highlights the significant legal obligations placed upon operators of hospitality facilities and invites careful consideration of the balance between criminal liability and practical responsibility.

So then, how does the householder become complicit? A careful perusal of Section 106 of the Criminal Offences Act 1960 (Act 29) sets the undertone for this author’s discussion on the subject; and prompts an interesting proposal as to which interpretation tool is requisite to be applied with respect to the tenor of subsection 3 given the surge of householder businesses in Ghana.

The Ghana Hotels Association (GHA) provides on its website (https://www.ghanahotelsassociation.com/) that, it has over six hundred members with over one thousand five hundred employees. Admittedly, not all hoteliers in Ghana are members of the GHA, and thus, the pool of individuals envisioned as householders by this author, who may find this write-up pertinent, extends beyond the GHA’s published figures.

Right here in the capital, Accra, almost every locality or vicinity is likely to feature an array of tourist or temporary accommodations. Ranging from places intended for watching movies that are not cinemas, to guest houses, to hotels and more recently Airbnb apartments, it is very important that the human resource managers of these premises, or persons in charge take upon themselves the responsibility of informing his employees of the Section 106 of Act 29 in particular, so that these persons do not become entangled in the shackles of ignorance of the law, which as the legal luminaries put it, excuses no one.

Even more saddening, is the possibility that, some of these employees are Senior High School Leavers, who while waiting to enter a tertiary institution, decided to take these hospitality jobs to pass the time. Such a tenure, if marred by inadvertence of some kind may lead to the commission of an offence that makes that individual liable upon conviction to a term of imprisonment not less than seven years and not more than twenty-five years.

For the avoidance of doubt, Section 106 of Act 29 is reproduced below:

(1) The owner or occupier of premises or a person acting or assisting in the management of the premises who induces or knowingly permits a child of less than sixteen years of age to resort to or be in or on the premises to be carnally known or unnaturally carnally known by any other person, commits a criminal offence and is liable on conviction to a term of imprisonment not less than seven years and not more than twenty-five years.

(2) For the purpose of subsection (1), it is a criminal offence under this section whether the carnal knowledge or unnatural carnal knowledge is intended to be with a particular person or generally.

(3) It is a defence to a charge under this section that the accused person had reasonable cause to believe that the child was of or above sixteen years of age.

The language of Subsection 1 of Section 106 above is explicit, yet this author thinks it a matter of import to disintegrate it in order to bring into the limelight the elements of the offence of the householder.

Firstly, that person must be an owner or an occupier of the premises. An occupier by operation of law is any person who exercises right of physical possession of the premises to the exclusion of other persons. Any other person such as an employee or caretaker of the premises who is responsible for management of the premises or who assists in management of the premises will be criminally liable and punished in the same manner as the owner or occupier ordinarily would.

Secondly, that person must have induced the child of below sixteen years of age or knowingly permits them to be on the premises for the purpose of being carnally or unnaturally carnally known. Indubitably, any person who induces a child below the age of 16 years to become the subject of the offence of defilement deserves punishment as stipulated under the law. Thus, a householder who knows a child is below 16 years, yet induces same or procures same to be defiled on the premises must not be made to escape criminal liability, irrespective of whatever defence may be available to him.

This author’s conundrum, however is with the phrase as provided under Section 106 (1) “…knowingly permits a child of less than sixteen years of age to resort to or be in or on the premises…”. How does the hotelier know that the child is below 16 years of age so that permitting the premises to be used in this context amounts to a criminal offence? Must the householder inspect an identification (ID) card? What if the child presented one, only that that ID card was forged? Does that make the householder liable? What is the practical responsibility imposed on the householder by law?  

In writing this article, this author interviewed two mothers on their view of the law. Due to sensitivity of the matter under discussion, and ultimately protection of their children, the mothers opted to remain anonymous, yet for clarity and the purpose of attribution of their respective statement, this author deems it fit to identify them as Mother 1 and Mother 2.

According to mother 1 who is nearing 50years of age, her daughter is only 14 but has developed most secondary female physical characteristics. Whenever, they step out together, they are regarded as siblings because people are unable to establish a clear-cut difference between herself and her child. (Perhaps, this is a heightened echelon of complementing a woman of 50 years or merely saying that the child looks too old for her age.) She alludes to the fact that, although her daughter does not look the age of most people within that bracket, the householder should have known that the child is below 16years. This raises the question, how is the householder blameworthy for permitting this child whose age is unknown to him to resort to or be on his premises where if the child is defiled, that householder becomes criminally liable? Perhaps the householder should have requested for some form Identification.

Conversely, how can a reasonable man, guided upon those considerations which ordinarily regulate human affairs come to the logical conclusion that, a child of 14 years whose features can unmistakably be juxtaposed with her mother’s of bearing striking resemblance, that the child is below the age of 16years or have reasonable suspicion that the child is below that age. Such that, to negate such suspicion, he needs to request an ID from the child without questioning his sense of judgment as to whether or not such enquiry is likely to amount to unwarranted harassment of his patron.

Mother 2 described her child as a “late bloomer” (a person whose secondary sexual characteristics develop rather later than the stipulated age of puberty). She took a strict stance. To her the householder must at all times ensure that persons admitted to the premises are of legal age and suitable for whatever purpose they resort to or require entry of the premises. She suggested that, it can be achieved if all persons visiting the premises are made to provide means of identification such as a valid ID or a passport together with their birth certificate. And this author inquires; how does this give commercial efficacy to the householder’s business? Taking into the account the fact that due to the private nature of activities conducted in these premises, some persons request access while disguising themselves by using aliases.

These Mothers’ perspectives and the author’s dilemma converge somewhat at Subsection 3 of Section 106 of Act 29.  It provides that, “It is a defence to a charge under this section that the accused person had reasonable cause to believe that the child was of or above sixteen years of age.” The tenor of Section 106(3) of Act 29 is that a householder who knowingly permits his premises to be used for the purposes of defilement will be absolved of criminal liability if he has reasonable cause to believe that the child either was or above the age of sixteen years of age.

What does reasonable cause mean? Is it what a reasonable man will say it is? Or rather what can be subjectively determined. Subjective means of determining reasonable cause in this context places high obligations on the householder to ensure that, all persons who resort to, or enter his premises are above 16 years of age. This, the author believes can be achieved with the double-layered scrutiny proffered by Mother 2. Viz, production of a valid national ID or Passport, together with birth certificate. Having done so, the householder may be absolved of liability in all circumstances, even where there appears to be forgery of some sort on the face of the ID, which forgery cannot be easily detected upon reasonable inspection of the means of Identification. This may amount to “reasonable cause”.

A householder who does this, can be assured of the protection granted under Section 106(3) of Act 29. However, this approach is potentially detrimental to his business. For, not all patrons, even with the assurance of privacy, will want to put out their names before resorting to that premises for whatever duration and purpose.

The test of reasonableness or objectivity is measured by what a hypothetical reasonable man will deem a particular subject matter to be or not to be. Thus, if the subject matter is finance, a reasonable man is person whose knowledge is well grounded in finance. If the subject matter is law, someone who has legal knowledge of the matter under discussion. If, medicine, an individual with ample knowledge of the field. Coupled with knowledge, the reasonable man must equally be objective. Therefore, in the matter of age determination, objectivity can be determined by hypothetical persons, who, granted with the knowledge of the circumstances of growth and human existence can come to a logical conclusion that, albeit in fact the child is below the age of 16, there is reasonable cause to believe that that the child was of or above sixteen years of age.

As noted by my Lord, Justice Sir Dennis Dominic Adjei in (Contemporary Ghanaian Criminal Law, Second Edition,), factors to justify reasonable cause to believe that a child is above the age of 16 years of age may include “stature of the person, whether the child has completed Senior High School or is in gainful employment. The defence put up by the accused person shall not be fanciful defence but a defence grounded in reasonable cause that the child was not less than sixteen years.”

The objectivity of such reasonable cause is for the hypothetical reasonable man to determine. So that, when stature is used as a determinant of age, will the reasonable man conclude, having looked at the child’s stature that he or she is below 16 years, and not simply because the accused thinks that the child is of that age.

Moreover, the possibility of having a lot of children leave Senior High School before the age of 16 years is high nowadays, and that mere affirmation of completing senior high school may not necessarily solely guarantee a solid defence of reasonable cause. Perhaps, this may become sound when used conjunctively with the child’s stature. The stature as a factor may be used solely if, the reasonable man deems so fit to use. With regard to the matters of unemployment in this country, the author does not wish to wade into such waters, talk less of a person who can be said to be gainfully employed in Ghana.

Ultimately, the intersection of these factors of determining contextual objective reasonable cause, needs to be reiterated, that, it is what a reasonable man guided by all the considerations which govern the state of affairs of age determination will conclude, if faced with the householder’s dilemma.

This mode of determination may be advantageous to the householder, since it is apparent that the standard of duty placed on him is not high. Also, this mode has relatively lesser probability of harassing an individual who resorts to or requires access to the householder’s premises. However, when using this approach, the householder must exercise extreme caution so that, he does not fall outside the purview of what the objective man will deem as reasonable cause.

The third and final element of the offence is that, the child is to either be known on the premises naturally carnally or unnaturally carnally by a particular person or persons generally. Natural carnal knowledge, is sexual intercourse which involves penetration of the vagina of a female by the penis of a male as enunciated in Gligah & Atiso v The Republic, whereas unnatural carnal knowledge means engaging in sexual intercourse in an unnatural manner or with an animal (as defined in Gligah & Atiso Case) and consistent with Section 104 (2) of Act 29. Crucially, a child as used in this context is not gender specific. It applies to both male and female who may be below sixteen years of age.

In sum, Section 106 of Act 29 is one of the offences which carry heavy punishment, yet ignorance of it does not become a defence which avails a person with whom a charge is brought against. It is thus incumbent on Hoteliers and their employees to familiarize themselves with this law and its nuances.

Moreover, for the defence provided under Section 106(3) of Act 29 to avail a householder in most cases, he should have taken judicious steps in determining the age of the child even if such may amount to harassment of that child or the process may prove detrimental to his business. For the freedom of movement is precious yet often taken for granted until it is curtailed by incarceration.