IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of an appeal under the Judicature Ordinance 1961
and the Court of Appeal Rules 1961

BETWEEN

OTTO HUNT
Appellant

AND

THE POLICE
Respondent

Coram: The Honourable Justice Ellis
The Honourable Justice Gallen
The Honourable Justice Salmon

Hearing: 18 April 2006

Counsel: Mr. T Malifa for the Appellant
Mr. K Koria and Miss. P Chang for the Respondent

Judgment: 26 April 2006

JUDGMENT OF THE COURT

[1].	The appellant in this appeal was charged with two counts of rape under section 47 of the Crimes Ordinance 1961. The trial was set down for hearing before the Chief Justice and a panel of assessors on the 13th September 2005 but before the trial commenced counsel on both sides asked to see the Chief Justice in Chambers with regard to a number of pre trial matters.

[2].	These included an indication by counsel for the appellant that it was his intention to challenge the validity of section 47 on the grounds that it infringed the provisions of Article 15 of the Constitution. The Chief Justice after discussing the matter with counsel decided that the trial should be adjourned until such time as the constitutional point had been determined as a preliminary issue.

[3].	The hearing of this question was then adjourned for two days to give prosecuting counsel an opportunity to prepare, counsel having only learned of the challenge the previous afternoon. The Chief Justice, not surprisingly, expressed the view, that where an intended challenge of this nature was contemplated, good practice required notice of it to be given, so that the court could deal with it well before trial. We agree with this comment and endorse it.

[4].	The contention before the Chief Justice, and in this court, in very general terms was that the provisions of section 47 are discriminatory, since they apply only to males and therefore contrary to the provisions of Article 15 of the Constitution which prohibits discrimination inter alia on grounds of gender. Any consideration of a question of this kind must be in the whole context of that part of the Ordinance dealing with crimes of a sexual nature.

[5].	Section 47 must be considered in context.

[6].	Section 46 defines sexual intercourse and is in the following terms:- 

For the purpose of this Part of this Act, sexual intercourse is complete upon penetration; and there shall be no presumption of law that any person is by reason of his age incapable of such intercourse.

It should be emphasized that it is a basic part of the definition that penetration is essential. Penetration necessarily involves penetration by the male penis. 

[7].	Section 47 is in the following terms:- 

{1}	Rape is the act of a male person having sexual intercourse with a woman or girl:

(a)	Without her consent freely and voluntary given; or

(b)	With consent extorted by fear or bodily harm or by threats; or

(c)	With consent extorted by fear, on reasonable grounds, that the refusal of consent would result in the death of or grievous bodily injury to a third person; or

(d)	With consent obtained by personating her husband; or

(e)	With consent obtained by a false fraudulent representation as to the nature and quality of the act.

{2}	Every one who commits rape is liable to imprisonment for life.

{3}	Notwithstanding anything in subsection (1) of this section, no man shall be convicted of rape in respect of his intercourse with his wife, unless at the time of the intercourse there was in force in respect of the marriage a decree of judicial separation or a separation order.

[8].	Article 15 of the Constitution is in the following terms: - 

{1}	All persons are equal before the law and entitled to equal protection under the law.

{2}	Except as expressly authorized under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on ground only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them.

{3}	Nothing in this Article shall:

(a)	Prevent the prescription of qualification for the service of Western Samoa or the service of a body corporate directly established under the law; or

(b)	Prevent the making of any provision for the protection or advancement of women or children or of any socially or educationally retarded class of persons.

{4}	Nothing in this Article shall affect the operation of any existing law or the maintenance by the State of any executive or administrative practice being observed on Independent Day:

PROVIDED THAT the State shall direct its policy towards the progressive removal of any disability or restriction which has been imposed on any of the grounds referred to in clause (2) and of any privilege or advantage which has been conferred on any of those grounds.

[9]	The Chief Justice noted that the argument for the appellant was to the effect, that because section 47. (1) refers to rape as being the act of a male, exclusion of females is discriminatory within the meaning of Article 15. Although Mr Malifa put his contention in various ways before us essentially his argument depended on the same assertion in this Court. The Chief Justice noted that Article 15 excluded from its provisions the making of any provision for the protection of women. He concluded that the provisions of sub-clause (3) of Article 15 applied, and were sufficient to dispose of the argument put forward for the appellant. The Chief Justice then went on to consider a number of authorities which he considered dealt with comparable arguments, and after a careful analysis of these cases, reached the conclusion, that even without reference to the provisions of sub- clause 3 of Clause 15, the weight of authority was against the contention of the appellant.

[10].	In particular the Chief Justice noted that the crime of rape involved two basic elements, sexual intercourse, and lack of consent on the part of the victim. He noted that sexual intercourse, as defined, necessarily involved the act of a male because only a male could physically achieve penetration as required for the act of sexual intercourse. He concluded that women could not physically commit the act necessary, because a woman could not biologically achieve penetration. He noted however, that a woman could still be convicted of rape as a party under those provisions of the Crimes Ordinance which establish the circumstances under which a person may be guilty of an offence as a party.

[11].	Finally the Chief Justice considered the question of public interest, and a balancing of the interests of a community with the safeguards contained in the Constitution. In the end he concluded that section 47 was not discriminatory, in the sense prohibited by clause 15 of the Constitution, and dismissed the application. Against that decision the appellant has appealed.

[12]	In this court counsel for the appellant repeated and elaborated on the submissions he had made to the Chief Justice. He relied strongly on the wording of section 47, and in particular subsection (1), which specifically refers to the act of a male person as an essential element and therefore excludes a female.

[13].	Mr. Malifa did not accept that the authorities on which the Chief Justice had relied were relevant, or applicable to the situation in Samoa.

[14].	He also relied on other authorities where the importance of the fundamental human rights provisions of a constitution were stressed.

[15].	He also contended that the provisions of section 47, and the interpretation placed on sub-clause (3) of Article 15, were derogatory of women, suggesting that women were inferior and in need of special protection and that this militated against the interpretation accepted by the Chief Justice.

[16].	In discussion with the Court, he relied also on the provisions of sections 58E and 58F of the Crimes ordinance, which also depend on proof of penetration, but where the offences are expressed as being committable by 'everyone,' and contended that they provided support for the contention that section 47 ought to be worded as: 'Rape is the act of any person' rather than as the act of 'a male person'.

[17].	 We should say at the outset that we largely agree with the reasoning of the Chief Justice, and the conclusion to which he came, but in deference to the argument we have heard, and the importance of the question, we wish to add some comments. 

[18]	Section 47 is constructed by first setting out the necessary constituents of any action before it can constitute rape. The actual offence is created by subsection (2), and that is expressed in terms of 'everyone who commits.' That is strongly against any interpretation which suggests that there is discrimination, and of course contemplates that a female may be guilty of the offence, as a party, as the Chief Justice noted. That view makes it plain that section 47 is consistent with sections 48 and 49, which also require penetration, a term, which by definition, requires an action of which a female is biologically incapable.

[19]	The Chief Justice considered the Canadian case of R v Hess [1990] 2 SCR 906 where a majority of the Court concluded that an offence, which as a matter of fact, could only be committed (biologically) by one sex, did not necessarily constitute discrimination.

Quoting from that case:- 

'The appellants Hess and Nguyen submit that s.146(1) of the Code creates a distinction that violates s.15(1) of the Charter. They say that s.146(1) distinguishes between potential accused on the basis of a ground enumerated in s.15(1) of the Charter in that only men may be charged under the provision. They point out, moreover, that the provision clearly envisages that only females may be complainants. The question arises therefore whether it is open to the legislature to create an offence that applies only to accused of one sex and to victims of one sex'.

'But if the impugned provision creates an offence that involves acts which, as a matter of fact, can only be committed by one sex, then it is not obvious that s.15(1) of the Charter is infringed. In such a case there may well be a reason related to sex for creating an offence that can only be committed by one sex. I am, of course, fully aware of the dangers inherent in arguments that seek to justify particular distinctions on the basis of alleged sex-related factors. All too often arguments of this kind have been used to justify subtle and sometimes not so subtle forms of discrimination. They are tied up with popular yet ill-conceived notions about a given sex’s strengths and weaknesses or abilities and disabilities. 

'Nevertheless, there are certain biological realities that one cannot ignore and that may legitimately shape the definition of particular offences. In my view, the fact that the legislature has defined an offence in relation to these realities will not necessarily trigger s.15(1) of the Charter. I think few would venture to suggest that a provision proscribing self-induced abortion could be characterized as discriminatory because it did not apply to men. Such an argument would be absurd. In my view, s.15(1) does not prevent the creation of an offence which, as a matter of biological fact, can only be committed by one of the sexes because of the unique nature of the acts that are proscribed.'

We accept that R v Hess is not determinative of this case, since it dealt with a different offence, but its reasoning is persuasive, and directly applicable.

[20].	Mr Malifa argued that all cases of this kind must be considered in the social context of the society to which they apply, and we accept that, but the fact remains that the Samoan legislature has not considered it necessary, or appropriate, to make an amendment of the kind he suggests, and this must, for the purposes of this court, be at least some basis for concluding that the social consensus in Samoa does not lead to such a necessity. That is not of course conclusive. In a situation where the constitution is paramount inferior legislation may need to be struck down, but it is at least an indicator.

[21]	Mr. Malifa also referred to comparable provisions in New Zealand, and these too were commented on by the chief Justice. The provisions are however entirely different in form.

[22].	The New Zealand provisions replaced provisions (similar to those which still apply in Samoa), with a general section, creating an offence of sexual violation. Anyone, regardless of gender, can commit the offence of sexual violation, but the separate definitions of the various actions which constitute sexual violation for the purposes of the section, include a definition of rape, which in terms is confined to a male person.

[23].	There has been no suggestion that that contravenes the discrimination provisions in the New Zealand Bill of Rights Act, although that Act cannot override an Act of parliament. That is not decisive in Samoa, where the Constitution is paramount, but Mr Malifa’s reliance on the general word 'everyone' at the outset cannot be supported because the section includes and retains a definition of rape which remains confined to the actions of a male.

[24].	It is also clear that it is quite possible for a woman to be convicted under the section in spite of the reference to the necessary act of a male person. As the Chief Justice noted a woman might be charged as a party to a rape under the parties provisions of the Criminal Ordinance. It is also at least possible, in an extreme case, that a woman might be found guilty as result of using a male, by some form of coercion, as an instrument to carry out the offence. Those illustrations also lead to the conclusion that the section is not discriminatory, in the sense for which Mr. Malifa contends.

[25].	Finally, and decisively, we consider, as did the Chief Justice, that sub-clause 3 of Article 15 leads to the conclusion to which he came. It specifically excepts any statutory provision which is designed to protect women from the anti discrimination provisions.

Section 47 is plainly designed to do just that. This is not derogatory of women nor does it suggest they are to be regarded as in some way second class citizens. It recognizes that the consequences of rape, as defined, can be catastrophic for the victim, and in particular, such conduct can lead not only to degradation of the victim, but to the continuing consequences of pregnancy. That requires the actions of a male and is of itself enough to avoid any question of discrimination. See also R v Hess supra.

The appeal is dismissed.

Honourable Justice Ellis
Honourable Justice Gallen
Honourable Justice Salmon

Solicitors

Sogi Law for the Appellant
Attorney General’s Office, Apia for the Respondent