IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

OTTO HUNT aka JOSEPH VERNE HUNT
male of Vaitoloa / Aleisa
Accused

Counsel: P Chang and K. Koria for prosecution
LT Malifa for accused

Hearing: 15 September 2005
Judgment: 19 September 2005

JUDGMENT OF SAPOLU CJ

Introduction

The accused is charged with two counts of rape under s.47 of the Crimes Ordinance 1961. The trial which was to be held before myself and a panel of assessors was set to start on Tuesday morning, 13 September. However, before the trial was to start, counsel on both sides saw me in chambers regarding certain matters in relation to the trial. One of these matters is that counsel for the accused proposes to challenge the validity of s.47 providing for the crime of rape as being contrary to the anti-discrimination provisions of Article 15 of the Constitution. I then decided in the ensuing discussion with counsel to adjourn the trial and discharge the assessors in order to deal first with the constitutional challenge as a preliminary issue. All counsel agreed to a two days adjournment to give counsel for the prosecution, who had only been advised the previous afternoon of the proposed constitutional challenge, the opportunity to prepare. Proceedings were accordingly adjourned to Thursday, 15 September, for hearing submissions by counsel.

It would be good practice where there is an intended challenge to the constitutional validity of a legislative provision charging an accused with an offence that the Court and the prosecution be advised in sufficient time so that the charge would not be set down for trial but for the Court to deal first with the constitutional challenge as a preliminary issue if that is necessary. A constitutional challenge to the validity of a legislative provision normally calls for extensive and thorough legal research on the part of counsel. Thus counsel opposing the challenge would, as to be expected, like to have sufficient time for that purpose. The remedy often sought is a declaratory judgment or declaratory order. A motion seeking the appropriate remedy would be filed setting out the grounds on which the constitutional challenge is based. In practice supporting affidavits are also filed.

Section 47 (1) which creates the crime of rape contains five paragraphs. As it is not clear from the informations which paragraph or paragraphs are relied upon, I will set out s.47 (1) in full. It provides:

“(1)	Rape is the act of a male person having sexual intercourse with a woman or girl:

(a)	without her consent freely and voluntarily 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 and fraudulent representation as to the nature and quality of the act.”

Section 47 (2) then provides the maximum penalty as life imprisonment. And s.47 (3) provides that no man shall be convicted of rape in respect of 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.

Article 15 of the Constitution, as far as relevant, provides:

“(1)	All persons are equal before the law and entitled to equal protection under the law.

(2)	Except as expressly authorised 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 grounds 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)	……

(b)	Prevent the making of any provision for the protection of …. women ….

(4)	…………

Submissions of Counsel

Essentially, the written argument by counsel for the accused is that s.47 infringes Article 15(1) of the Constitution in that it makes only a male, but not a female, liable to be charged with rape. On that basis, s.47 expressly catches only a male person but not a female person. It therefore treats a male person differently from a female person and punishes a male person found guilty of rape. It follows that s.47 infringes Article 15(1) which provides for equality before the law and equal protection under the law. Secondly, as s.47 applies only to a male person it subjects men to the disability or restriction of denying to themselves their own worth as human beings because of their sex while it confers on women an advantage because of their sex. Section 47 therefore infringes Article 15(2) because it discriminates between men and women on the ground of sex. As the written argument for the accused unfolded itself in the oral submissions of counsel, it became clear that the gist of that argument is directed at the prohibition in Article 15(2) that no law shall discriminate on the ground of sex.

Essentially, the argument for the prosecution, on the other hand, is that the protection of women and girls from non-consensual sexual intercourse at the hands of men is the legitimate and apparent legislative purpose of s.47. As Article 15(3) expressly provides that nothing in Article 15 shall prevent the making of any provision for the protection of women, it should follow that Article 15 does not apply to s.47. The argument for the accused that s.47 infringes Article 15(1) and Article 15(2) must therefore fail.

Resolution of the constitutional challenge to the validity of s.47

It is clear from the wording of Article 15 that it is not an all-encompassing provision. There are certain matters which are expressly excluded from its application. Even though Article 15(1) speaks of equality of all persons before the law and equal protection under the law and Article 15(2) prohibits any law and executive or administrative action by the State which discriminates on any of the enumerated grounds, Article 15(3) expressly excludes from the application of Article 15 as a whole the making of any provision for certain specified matters which include the protection of women. The word ‘provision’ in Article 15(3) would include a legislative provision. As s.47 is a legislative provision whose clear purpose is the protection of women from acts of rape committed upon them by men, it would come within the ambit of Article 15(3) and therefore article 15(1) and Article 15(2) would not apply to it. That should be sufficient to dispose of the challenge that s.47 is unconstitutional on the ground that it infringes Article 15(1) and Article 15(2).

It is also arguable that even without Article 15(3), the issues raised in the constitutional challenge would be best left to the legislature to resolve as they concern social policy. In the Canadian case of R v Hess [1990] 2 SCR 906, the appellant Hess was charged with having sexual intercourse with a girl under the age of 14 years pursuant to s.146 (1) of the Canadian Criminal Code which provides:

“(1)	Every male person who has sexual intercourse with a female person who:

(a)	is not his wife, and

(b)	is under the age of fourteen years,

whether or not he believes that she is fourteen years of age or more, is guilty  of an indictable offence and is liable to imprisonment for life.”

The appellant, Hess, admitted that the act of sexual intercourse had taken place and the complainant was under the age of fourteen. However, he raised as a defence that s.146 (1) was unconstitutional as it infringes s.15 (1) of the Canadian Charter of Rights which provides:

“(1)	Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”

The defence raised by the appellant was based on two grounds: (a) only men can be convicted under s.146 (1) and are therefore deprived of a benefit or advantage enjoyed by women, and (b) only young women are protected by s.146 (1) whereas males of fourteen years or less are not given the same benefit as women.

In delivering a judgment with which Lamer CJ and La Forest and L’Heurex-Dubè JJ concurred, Wilson J said at pp 930-931:

“In these appeals we are asked to consider when a distinction drawn on the basis of sex may legitimately be made and when it may not. In the context of the criminal law it seems to me that the answer to this question will depend on the nature of the offence in issue. If the impugned provision creates an offence that can, as a matter of fact, be committed by either sex but goes on to specify that it is only an offence when committed by one sex, then there may well be an infringement of s.15 (1) …. Thus, were the legislature suddenly to decide that first degree murder would only be an offence when committed by a man, one would face an illegitimate distinction that would trigger s.15 (1). It would place a serious burden on males that was not imposed on females when there was no reason related to sex for imposing such a burden.

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 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 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.”

Further on, Wilson J went on to say:

“When s.146 (1) is read in light of s.147 and s.3 (b) it becomes clear that the legislature was of the opinion that, because only males over a certain age were physically capable of penetrating another person, only they needed to be listed as potential accused …. I think it clear that only males over a certain age are in fact capable of penetrating another person, at least in the sense of the term penetration that the Code is obviously concerned with. In my view, we are therefore dealing with an offence that involves an act that as a matter of biological fact only men over a certain age are capable of committing. And given that only men may be the penetrators, it is as absurd to suggest that the provision discriminates against males because it does not include women in the category of potential offenders as it is to suggest that a provision that prohibits self-induced abortion is discriminatory because it does not include men among the potential class of offenders.

This is not to say that some older women do not on occasion seek to have sex with males under fourteen years of age for they clearly do. But it seems to me that once one accepts that a female does not commit a physical act that can be readily equated with the one that a male commits under s.146 (1), then whether or not a female should be punished for the act she can and does commit is a policy matter best left to the legislature. In my view, it is not for this Court’s role under s.15 (1) of the Charter to decide whether a female who chooses to have intercourse with a boy under fourteen merits the same societal disapprobation as a male who has intercourse with a girl under fourteen. These issues go to the heart of society’s code of sexual morality and are, in my view, properly left for resolution to Parliament.”

The essence of these passages from the judgment of Wilson J in R v Hess [1990] 2 SCR 906 is cited in some detail in the Canadian Charter of Rights Decision Digest – Section 15(1) at pp 20-21.

I have referred to R v Hess to show how the Supreme Court of Canada had dealt with a challenge, similar to the one in the present case, to the constitutional validity of a legislative provision which makes only male persons, but not female persons, liable to a criminal conviction for having sexual intercourse with a female person under the age of fourteen years. There is no provision in s. l5 of the Canadian Charter of Rights like Article 15(3) of the Samoan Constitution which excludes the making of legislative provisions for the protection of women from the application of the equality and anti-discrimination provisions of Article 15(1) and Article 15(2). So even without Article 15 (3), it could have been argued on legal principle that Article 15 does not apply to the crime of rape.

Counsel for the prosecution in their submissions referred to the approach adopted by the European Court of Human Rights in Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Belgian Linguistics Case) (No. 2) (1979-1980) 1 EHRR 252. Under that approach there are three questions to be considered in determining whether there has been a violation of the principle of equality of treatment embodied in Article 14 of the European Convention on Human Rights. Those three questions are set out in the judgment of Young J in this Court in the electoral case of Aiono Sia v Maiava Visekota Peteru et al (1998) (judgment delivered on 31 August 1998) as: (a) the equality of treatment provision can be violated if the distinction drawn has no objective and reasonable justification, (b) proportionality between the means employed and the aim sought to be realised must be present, and (c) the distinction in treatment should be based on public interest, striking a balance between the interests of the Community and the safeguards of the Convention. Young J then went on to point out with reference to what was said in the Belgian Linguistics Case:

“Dealing with these three principles it was stressed that it is not for the Court to put itself in the place of the legislature and questions of social policy are for the legislature.”

That statement is consistent with what was said by Wilson J in delivering the judgment of the majority in R v Hess [1990] 2 SCR 906 at pp 930-931. The Samoan Court of Appeal in the electoral case of Asiata Saleimoa Vaai v Tavu’i Lene [1996] WSCA 8, which was also cited by counsel for the prosecution, also referred to the approach in the Belgian Linguistics Case.

Given the view which I have formed that s.47 has been excluded by Article 15 (3) from the application of Article 15, it is unnecessary to consider the application of the approach in the Belgian Linguistics Case to this case. But as the matter has been raised by counsel for the prosecution, I have decided to deal with it.

Turning to the first question whether s.47 draws a distinction between men and women that has no objective and reasonable justification, the answer is simply and plainly no. The crime of rape created by s.47 consists of two basic elements, namely, sexual intercourse and lack of consent on the part of the victim. In law sexual intercourse is complete upon penetration. It is a biological fact that only a man is physically capable of committing the act of penetration required for rape. It is physically impossible for a woman to commit such act of penetration because of biological realities. A woman therefore cannot physically commit rape. In saying this, I did, however, point out to counsel for the accused that a woman may still be charged and convicted of rape if she can be brought as a secondary party, not as a principal offender, within the provisions of s.23 of the Crimes Ordinance 1961 relating to who can be a party to an offence. If, therefore, it is correct to say that s.47 draws a distinction between men and woman by making only men liable to conviction for the crime of rape, then it is a distinction with more than ample objective and reasonable justification. Rape is also a crime that often involves the use of force and sometimes violence to overpower a woman. It can result in physical harm and no doubt psychological harm to a woman which can be permanent. It is a crime that threatens the liberty and security of women. It is always committed by men as principal offenders unless a woman is involved as a secondary party which is very rare. When I also asked counsel for the accused if he was aware of any country which permits rape he said no. So there is more than ample objective and reasonable justification for s.47 and any distinction or differential treatment which it creates between men and women.

In respect of the second question whether there is proportionality between the means used and the aim sought to be realised, I am of the clear view that there is. The clear aim of s.47 is the protection of women from non-consensual sexual intercourse. It is the protection of their liberty and security that s.47 is aimed at. It would have been very serious and dangerous for women if that legislative protection did not exist. No woman whether she is a mother, a wife, a sister or a daughter would feel safe if non-consensual sexual intercourse were not prohibited and punished by the criminal law. It could open the door to violence as no woman would succumb to non-consensual sexual intercourse with her hands down if she has the physical strength to resist it. And no reasonable man would stand by while his mother, wife, sister or daughter is being raped. The very stability of human society would be at risk.

The legislature has criminalized non-consensual sexual intercourse between a man and a woman by creating the crime of rape provided in s.47 and make it punishable with the maximum penalty of life imprisonment. This is the means the legislature has decided to adopt to deal with non-consensual sexual intercourse which, because of biological realities, can only be physically committed by men. The aim of s.47 is the protection of women from a kind of human conduct which is treated as very serious by society. I am of the clear view that there is proportionality between s.47 which is the means adopted by the legislature and the aim to be realised which is the protection of women from non-consensual sexual intercourse by men.

In respect of the third question whether the distinction, if any, is based on public interest, striking a fair balance between the interests of the community and the safeguards of the Constitution, I must admit that I have some difficulty with applying this requirement too literally because of the wording of Article 14 of the European Convention on Human Rights which does not create a substantive right unlike Article 15 of the Samoan Constitution which does. Article 14 protects against discrimination in the enjoyment of fundamental rights provided elsewhere in the European Convention whereas Article 15 establishes a substantive right on its own. Be that as it may, any distinction drawn by s.47 between men and women with regard to the crime of rape is based on public interest not only because of the serious nature of the crime itself and the fact that only men can commit it due to biological realities, but also because of society’s need for the protection of women from such a crime. A fair balance is being struck between the interests of the community in protecting women from non-consensual sexual intercourse and the freedom from discriminatory legislation provided in Article 15.

On the approach in the Belgian Linguistics Case which has been applied by the Samoan Courts in Asiata Saleimoa Vaai v Tavu’i Lene [1996] WSCA 8 and Aiono Sia v Maiava Visekota Peteru et al (1998) (judgment of Young J delivered on 31 August 1998), I would also have found that s.47 of the Crimes Ordinance 1961 does not infringe Article 15. Perhaps I should point out that counsel for the accused did not rely on this approach in his constitutional challenge. However, one of the submissions he made was to the effect that s.47 is discriminatory against men when it is compared to s.128 of the New Zealand Crimes Act 1961 which catches both men and women. Section 128 which provides for ‘sexual violation’ defines that expression to mean: (a) the act of a male who rapes a female, or (b) the act of a person having unlawful sexual connection with another person. It was therefore submitted that s.47 of the Samoan Crimes Ordinance 1961 is discriminatory as it penalises only men but not women unlike the New Zealand provision which catches both. With respect, I find this submission unsatisfactory. Not every distinction or differential treatment is ‘discriminatory’ and therefore unconstitutional, even if it is based on sex. The law, in fact, does make distinctions in a number of areas. It is not enough to say that a particular law draws a distinction between men and women or treats men differently from women on the ground of sex and therefore arrive at the conclusion that that particular law must be discriminatory and unconstitutional. The law has provided analytical approaches for determining whether a particular distinction or differential treatment is discriminatory in the sense provided by the Constitution and therefore unconstitutional. One such approach is provided in the Belgian Linguistics Case applied in the present case. Another approach, which I pointed out to counsel, is provided in the judgment of the Supreme Court of Canada in Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497.

To determine whether s.47 is discriminatory, it should be judged by reference to the provisions of Article 15 of the Constitution and not by reference to a provision in the criminal legislation of another country and deduce from that that s.47 must be discriminatory. The real question is whether s.47 is discriminatory in terms of Article 15, not whether it is the same as a legislative provision in another jurisdiction. Simply because the New Zealand provision on sexual violation is different from the Samoan provision on rape does not mean the Samoan provision is therefore discriminatory and unconstitutional. Be that as it may, s.128 of the New Zealand Crimes Act 1961 provides that sexual violation includes the act of a male who rapes a female. On the argument by counsel for the accused that part of s.128 would be discriminatory against men but ceased to be discriminatory for the reason that sexual violation also includes the act of a person having unlawful sexual connection with another person because the second part of the definition of sexual violation catches women. I do not agree with this line of argument. In any case, this is a matter which involves social policy and it would best be left to the legislature to resolve.

For the foregoing reasons, the challenge by the accused to the constitutional validity of s.47 cannot succeed. It is therefore dismissed.

CHIEF JUSTICE