Sexual activity cannot be considered to be alien or unrelated to pregnancy, childbirth and co-parenting. According to Ghana’s Criminal Code, the current age of sexual consent is 16 years, while the age of marriage is 18. This current age of sexual consent needs to be adjusted upwards from 16 to 18 years. Basic Ghanaian sociology reveals that many of the problems we have are not as a result of individual deficiency or personal moral decay, but as a result of our legal, structural and collective cultural arrangement or misarrangement. This structural arrangement needs a critical review and a reconsideration of its application, rather than an assumption that the individuals in the society need character adjustment.

The age of sexual consent for the Ghanaian child has been a subject of debate over the years among scholars, legal luminaries and child welfare and child protection officers, including social workers. While the age of marriage has not been contested in itself, the age of sexual consent has been a subject of long-standing controversy, especially when assessed vis-a-vis the age of marriage. Technically and logically, the controversy of the age of consent bespattered the age of marriage as well. It therefore suffices to argue that if controversy surrounding the age of sexual consent is resolved, it will bring finality to the concerns surrounding the age of marriage as well.

UNICEF noted that the age of sexual consent should take into primary consideration the likelihood of sexual abuse, the consequence of early sexual activity on the rights and development of the child and sexual exploitation or manipulation of children/adolescents with gifts and favours. This suggests that children are more susceptible to exploitation and manipulation, especially when gifts are involved. When a child or an adolescent is offered gifts, especially one that satisfies a pressing need, s/he is likely to fall victim to whatever conditionality it comes with. In Ghana and other West African countries, where many children are left to meet their own needs with little support from parents and absolutely no direct state intervention, the sexual vulnerability of the child is heightened when s/he is offered a gift or assistance by a manipulative adult. It is in these contexts that the age of sexual consent needs a critical re-evaluation in our legal and social space.

Notwithstanding the fact that some countries have 13 years and 14 years as the minimum age of consent, the United Nations Convention on the Rights of the Child (UNCRC) has rejected 13 years as an age of sexual consent, noting that it is too low. However, it noted that the age should also not be too high such that it may over-criminalise adolescent behaviours. It is my candid view that the age of sexual consent must first be examined from a biological and physiological health perspective and from a context-specific geographic economic viewpoint. Sexual activity of a child has major biological and psychological health implications.

A Ghanaian child, especially a teenager, who engages in sexual activity is prone to pregnancy. Pregnancy implies two people: the engineers of the pregnancy (the parties who engaged in the sexual act) and the product of the pregnancy (foetus or baby eventually born). For the girl who carries the pregnancy, she may not have the biological capability to carry a pregnancy. She may also not have gained sufficient knowledge about caring for herself and the foetus or newborn baby in the critical periods. Access to prenatal care is usually not available to many Ghanaian girls and women, as many of them dwell in rural communities without basic clinics. The critical question that sums up this reality is this: Who takes care of the pregnant girl, the boy who impregnated her, and the baby? In a society where poverty levels are high, children of poor parents should not be exposed to early sexual activities that put them in major financial hardships.

Further, discrimination against a Ghanaian girl who gets pregnant can be emotionally daunting and overwhelming, such that it may trigger depression, regrets and pain that can be displaced onto the newborn baby in the form of manifested and hidden abuse and gross maltreatment. The boy child who got the girl pregnant may also not be emotionally stable and mature enough to accept responsibility for the pregnancy.

The boys who accept pregnancy may not have the experience, knowledge and financial resources to provide the pregnant girl with the basic emotional and financial support. In the situation where both the boy and girl suffer from stigma, they live with pain, some level of shame and regrets such that they find it difficult to navigate the already naturally daunting demands of pregnancy. Their mental health in such a circumstance will undoubtedly be unhealthy.

Support may obviously be in oblivion, as it cannot possibly come from the very family members, friends and relatives who are the perpetrators/architects/orchestrators of the stigma. The aforementioned context-specific concerns suggest that raising the age of sexual consent does not seek to criminalise childhood sexual behaviour in any way. Rather, it seeks to promote the best biological and psychological interest of a Ghanaian child in the precarious conditions s/he finds herself/himself in.

More importantly, raising the age of sexual consent will ensure uniformity with the age of marriage and eliminate the major controversy the age discrepancy has presented over the years. This decision will ensure that anyone/couple who gets pregnant have the permission to get married and raise children born to them in a relatively stable family. Ensuring that a child is raised by both parents is in the best interest of the child (born or yet to be born). A child born to, and raised by, both parents who have agreed to stay together offers that child a fresh, ripe and consistent opportunity to be loved, cared for, and adored. Any relationship that is stifled by legal and cultural regulations can create acrimony between the couple and jeopardise the smooth emotional and economic benefit the child should enjoy.

When partners can legitimately get pregnant but are prohibited from committing to living together, the new child becomes the sole and definitive innocent victim of such a perplexing arrangement. In the disadvantaged state, this child has no power to express her pain nor be able to determine her needs or how these needs must be provided. Legal arrangements that circuitously and inadvertently deprive a child of love, care, and regular presence of both parents must be rejected as torturous and inhuman, and clearly against the best interest of the child. Such a law is no true law. At best, it is a perversion of law, as it comes with punishment and cruelty, rather than protection of the child.

In many advanced states, a child born to a minor who gets pregnant but cannot marry or an adult who gets pregnant with a runaway man receives full-time state benefits that enable the new baby to be taken care of. Unfortunately, this arrangement is not available in the Ghanaian jurisdiction. Court processes that can enforce the maintenance of a newborn are so elite, inaccessible and complicated for aggrieved mothers that they are unable to resort to the courts for assistance. The painful, yet often unmentioned fact that makes the situation perilous is the ever-available, forceful, yet unempowered and ill-equipped Department of Social Welfare (DSW), which has almost always not been able to compel men who impregnate girls to take regular responsibility for the care and maintenance of children born to them.

The situation is worsened by the excuse of men who feel discouraged that they cannot have emotional bonding and an uncontested connection to a woman and child they are only legally permitted to have but illegal to keep. This conflict in the law creates an existential discouragement for fathers of a baby and empowers them to be irresponsible, especially when the courts and DSW are unable to enforce compliance with care and maintenance. A law that ensures that a male and a female who are permitted to get intimate also have the permission to marry and nurture a child ultimately provides the best form of protection for the parties and prevents vulnerabilities- a true law.

Considering the fact that UNICEF warns against criminalisation of sexual behaviours, it may not be rational, logical or realistic to peg the age of marriage and sexual consent at 21 years. Marriage is a common practice and an acceptable sociocultural element in our society which is instituted and nurtured to unify families, nurture and socialise children, promote economic activities and perpetuate community and the nation. In view of this, many people come to understand the fundamentals of marriage through primary, secondary and anticipatory socialisation. The knowledge, skills and experience of marriage occur continuously through multiple agencies and agents throughout a person’s lifespan. It is expected that by the age of majority, one may have acquired the basic skills, knowledge and understanding to sign up for it.

However, if it is the case that there is reservation about the 18-year legal age of marriage, the best way to address it should not be to raise the age to 21 years, as proposed by the Constitutional Review Committee chaired by Professor H. Kwesi Prempeh. Increasing the age of sexuality excessively will create longer years for the biological need related to sexuality to be fulfilled and stifle adults’ marriage intentions-a biological insensitivity and an extremely prolonged and irrational control over sexuality.

The concern that marrying at the age of 18 years can bring can be addressed using a non-punitive or oppressive law, but with a more nurturing and supportive intervention. A helpful approach is to resort to mandatory and sustained counselling to support and assist couples in the marriage endeavour. 

To circumvent this challenge and ensure that married couples who are between 18 and 21 years can have a relatively stable, manageable marriage experience, they should be mandated to sign up for bi-annual, ideally a six-monthly counselling engagement with a social worker specialised in child welfare and family protection.

The social worker’s role should include engaging the legally young couple on their marriage experience and helping manage challenges and resolve conflicts that have arisen. Based on the outcome of the engagement, the social worker should have the power to recommend the legal dissolution of the marriage in cases where s/he determines that the current marriage arrangement is acrimonious and is injurious to a partner or a child born to the couple.

In fact, I dare argue that age alone does not automatically perfect marriage; progressive experience and institutional support do. A balance of age to ensure that a person is not too young to be married naively or too old before gaining legitimacy for intimacy is worth adopting. It is in this consideration that I suggest 18 years, which is an already established age of majority, as the age of consent and marriage.

A synchronous age of sexual consent and marriage will certainly ensure protection for partners, reduce the burden on parents of new partners, and most importantly ensure that children born to partners are nurtured in a safe, non-acrimonious, loving, supportive and complete home, supported fully by non-conflicting legal backing.

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Author: Emmanuel Asare Owusu

Social Work lecturer

Methodist University Ghana