22 March 2015
A Supreme Court judge has said courts should not regard silence of a girl or woman as consent to sexual intercourse.
The judge, Lovemore Chikopa, said in his presentation ‘Judicial activism and protection of the rights of vulnerable groups in Malawi’ at a seminar in Blantyre on Friday that consent must be by an explicit yes and not otherwise.
In relation to handling sexual offences, the judge said if a man asks for a hug or kiss, the consent must end there and anything beyond that must happen after consent from the girl or woman.
Chikopa said an issue of sexual matters in court must be whether there was consent or not and not whether there was penetration.
The judge argued that even where there is penetration after consent was granted, consent can be withdrawn; hence, a man must respect the woman’s decision.
He said he had a case in mind where a senior lawyer argued that women are prone to telling lies; hence, a woman’s no might mean yes.
Chikopa said he did not believe what the lawyer said, arguing there must be a clear yes from a woman under any circumstances.
But his presentation attracted a heated debate, with one magistrate arguing that “you don’t ask consent when you want to hug a woman, you open your arms, and if she consents to that, she open hers and you hug.”
The magistrate argued that in the same manner, most men do not ask women that they want to have sexual intercourse with them.
He argued what happens is that most men start touching women in sensitive places and when they do not resist, it is a clear consent.
The magistrate argued to the laughter of participants: “I don’t think there is a man who can say-I want to have sexual intercourse with you, and the woman responds-Oh! Yes, come, have it.”
But Chikopa insisted that the courts must always look at whether there was consent.
Chikopa said in his presentation: “It is time, in my view, for courts to play their rightful part in protecting the rights of victims while also not compromising those of accused person.”
He said it was wrong in law to proceed on the basis that the female should scream for help and struggle against the male to show that she is not consenting.