LEGAL IDEAS FORUM

A Critique on the proposed Amendment of Section 357 of the Criminal Code Act CAP. C38 LFN 2004 (To include the male gender as rape victims) By the Senate of the Federal Republic of Nigeriaposer:The condition to prove Penetration Makes rape Penis-Centric and Gender Neutrality practically Unattainable-A comparative view

PREAMBLE.
While I applaud the Senate for a speedy amendment of some sections of the criminal code Act which according to Senator Opayemi Bamidele would be applicable only to Federal Court’s, the following proposed amendments are indeed plausible; the life imprisonment jail term for kidnapper’s in line 5 of section 364(2) of the criminal code, and the  time limit of prosecution of defilement cases pursuant to section 218 of the criminal code which shall be Commenced within 2 months from the date the offence is committed.
However, the proposed amendment as to gender restrictions of rape victims is thoughtful, arguable and agreeable, but before such an amendment should be made, the Senate should have considered the ingredients of rape and proffer measures to hold a woman guilty of raping a man. But it must be borne in mind that the writer is a disciple and adherer of the words of Lord Alfred Denning (MR) of the witchurch in Parker v. Parker when he stated thus, ‘ the fact that a thing has never been done does not mean it cannot be done’. In this particular case, there is more to apply judicial thinking and reasoning before such a grave alteration of our law.
In Nigeria law, the definition of rape under section 357 of the criminal code provides thus; Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or,
in the case of a married woman, by personating her husband, is guilty of an offence which is called rape. section 358 provides the punishment thus; Any person who commits the offence of rape is liable to imprisonment for life, with or without canning.
The legal implication of the above section is that rape can only be committed on a woman or girl, therefore the exclusion of the male gender as victim of rape is settled. 
The offence of rape is very difficult to prove in court because the prosecution must satisfy the following ingredients;The law is settled and well grounded that the prosecution has the burden and duty to prove the accused person guilty of the following ingredients in order to sustain the conviction of the offence of rape: (a) that the accused had sexual intercourse with the prosecutrix;(b) that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation;
(c) that the prosecutrix was not the wife of the accused;
(d) that the accused had the mensrea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not, (e) that there was penetration.
See Ogunbayo V. State (2007) 8 NWLR (Pt 1035) 157; Upahar V. State (2003) 6 NWLR (Pt 816) 230; State V. Ojo (1980) 2 NCR 391; Okoyomon V, State (1973) 1 SC 21; State V. Anolue (1983) 1 NCR 71 and Iko V, State (2001) 14 NWLR (Pt 732) 221.
In proof of rape therefore, the most essential ingredient of the offence is penetration, the extent no matter how slight will serve sufficient proof. It is well accepted and settled that penetration, with or without emission, is sufficient even where the hymen is not ruptured- The slightest penetration has served as sufficient to constitute the act of sexual intercourse. Again see Iko V. State, Ogunbayo V. State and State V. Ojo all under reference (supra) also Jegede V. State (2001) 14 NWLR (Pt 733) 264. Let us go too deep in order to remain focus on the aim of this paper.
COMPARATIVE ANALYSIS.
In the United kingdom, prior to 1994, the law was that only a man rape could rape a woman until  there was a change, and then the sexual offenses Act 2003 was enacted which made the victims of rape gender neutral, but maintained the requirement of penile penetration to a charge of rape, meaning that a woman cannot rape a man or another woman. (Natasha keever Criminal law and philosophy, 8th November, 2018). 
 This simply tell us that even the U.k  stumbled on the impossibility of the practicability of treating rape as a gender neutral offence.  In fact, in many ocassions, when a woman raped a man, she was rather charged for ‘sexual assualt’ or ‘causing a person to engage in sexual activity without consent’,however the punishment was same with rape life imprisonment), the nomenclature differs. 
The jurisprudential and philosophical reason of holding that only a man can rape a woman is enchored on the penile penetration condition which is borne out of the following logical reasoning viz; (1) it is physically impossible for a woman to rape a man, (2) it is worse to forcefully penetrate a person, than to compel them to penetrate you (3)  Rape as a gender crime. 
Natasha lamented thus, that the British Government’s reasoning for having separate offences depending on the gender of a perpetrator of non-consensual sex is not entirely clear. They state in their white paper, Protecting the Public, which preceded the Sexual Offences Act, 2003, that: One of the principles underlying our new offences is that they should not be gender specific. However, the offence of rape is clearly understood to be non-consensual penile penetration perpetrated by a man, on a woman or a man. The anatomical differences between men and women must sensibly direct that the offence of Rape should remain an offence that can only be physically performed by a man (although women can be guilty as accessories to the crime). This clearly means, the U.k attempted this change but the change never saw the light of the day. 
PENETRATION MAKES RAPE ‘PENIS-CENTRIC’ AND INCAPABLE OF GENDER NEUTRALITY 
The Senate of the federal Republic recently passed the third reading of a bill to amend the criminal code Act touching on some sections already highlighted in the preamble of this paper. Sen. Oluremi Tinubu who sponsored the bills was thoughtful but failed to realize the legal conundrum and summersault it would cause to the courts and the society at large. 
The issue is the penile penetration condition (PPC), how can a woman forcefully penetrate a man? Or if a woman ‘envelops’ her vagina on a man’s penis, how would you prove penetration? And to what extent would the issue of ‘consent’ be enlarged? 
For purposes of scholarship, it should be noted that section 357 which provides for rape, is now proposed to be amended in line 1 by substituting for the words, ‘woman or girl, without her consent, or with her consent’, the words, ‘any person, without consent, or with consent,’ and in line 3, by substituting for the words ‘in the case of a married woman, by personating her husband, is guilty of an offence which is called rape’. 
The question therefore is, how would the proof be like? Would it not even make the issue of proof of rape which is very contentions to be more cumbersome? Considering the fact that, a man may now allege that a woman raped him even when in truth, he was the one raping her.  The uncertainty would just be too much in practice. 
Unless the requirement of penetration is scraped out (which is impossible), rape remains commitable only by a man on woman or girl, and not vice versa. A woman can be charged for indecent assualts, accessories after the fact, but not rape. 
we know that, ‘erectus penitus non conscientus’ that is, ‘ an erected penis has no conscience, that’s one of the reasons why a woman cannot rape a man, because if a man really does not really want to  have sexual intercourse with a woman, the penis would not stand, this is however subject to instances where for instance the man’s life is in threat of death or danger. But generally, the definition of penetration would have to refined to accommodate the male’s. 
It should be noted that, the violence against the person Act is another wonderful piece of Federal legislation augmenting on our criminal laws, but the ongoing amendment would rather cause legal uncertainties and disruption of aged long principles of law guiding rape.
SUBMISSION
It is my submission that, if the requirement of penetration cannot be refined by the Senate in other to make rape gender neutral, then, the bill should be set aside if not the courts would in the nearest future declare it null and void.
ABOUT THE AUTHOR.
Mbang Confidence (S.A.S) is a final year student of the faculty of law University of Calabar, a paralegal of the Godwinson Churchill and co law firm Calabar, he has passion for exploring the law with his Articles and Agitations. He can be reached via mb[email protected]
       
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