AN EXEGESIS OF OFFENCE OF RAPE AND DEFILEMENT TO THE SCOPE OF CONVICTION

INTRODUCTION

The long settled position of the law and the law-of-the-tongue have been that “ He who alleged, carries the burden of proving”. The offence of rape and defilement are crimes known time immemorial and are in a class of capital offences. Conviction of such capital offences requires the establishment of all the ingredients designed by the law. With no exceptions, Rape and defilement are known to be grievous offences whose sentences are more or less very detrimental and excruciating in order to turn the society from the immoral, illegal and unnatural dehumanization attached to them. It is not only to save the society but to protect both alleged victim and defendant. For these offences, by their very nature, touch on the image of both the prosecutrix and the accused. It Is therefore in the interest of justice to have all the liberties of both parties in a safety net until otherwise justifiable. Securing conviction for these offences have been a long journey, justifiably so to avoid allegation which turns out to be a mere game of calumny.

In this exercise, after giving good definitions of law of the offences of rape and defilement, we will look into the nexus and prerequisite ingredients for their conviction. To a little extent we will see the instances in which corroboration is required for the both offences.

WHAT IS RAPE AND DEFILEMENT

The offence of rape have been, for a long time, clearly defined by various statutes and judicial pronouncements. Section 282 of the Penal Code act explains that;

“A man is said to commit rape who, has sexual intercourse with a woman in any of the following circumstances:- against her will; without her consent; with her consent, when her consent has been obtained by putting her in fear of death or of hurt; with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;with or without her consent, when she is under fourteen years of age or of unsound mind. ”

While Section 357 of the Criminal Code Act explained rape as;

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 married woman, by personating her husband, is guilty of an offence which is called RAPE.”

The supreme court through Rhodes-Vivour J.S.C in the celebrated Case of Posu & Anor v The State (2011) 3 NWLR (Pt. 393), also reported in (2011) 11 WRN 1 at 9*. Stated that;

A person commits the offence of rape if:

1. He intentionally penetrates the virgina with his penis, and

2. The prosecutrix did not consent to the penetration. That is to say the offence of rape is complete when a penis is inserted into the vault of the vagina without the consent of the prosecutrix. Evidence of rupture of the hymen or emission of semen is not necessary. Rape can thus be said to be unlawful carnal knowledge, or non consensual sex. Penetration without consent.”

Fabiyi J.S.C held same in the Posu’s case (supra) as: “An unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly, and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent.”

The offence of rape is very solemn and weighty offence that one might spent a reasonable time to have it well defined. Several definitions given to rape are all characterized and can be summarized to an absence of consent, having an unlawful carnal knowledge(Penetration) and used of external forces as the common features. On the other hand, defilement is defined in section 218 of Criminal Code act as; Any person who has unlawful carnal knowledge of a girl under the age of thirteen years is guilty of a felony, and is liable to imprisonment for life, with or without caning.

Offence of rape and defilement requires the same ingredients only that the former doesn’t need collaboration but the later need and Consent of the victim in the later is immaterial. They are offences that merely discrepant by the age of the victim, but it is worth noting that the age for defilement is subject to the jurisdiction for example section 218 of Criminal Code Law, Laws of the Bendel State of Nigeria Vol. II, 1976 as applicable in Delta State. Defines the Age as ‘eleven years’ and Section 209 of Penal Code Of Kaduna State provides; Any person who has sexual intercourse with a ‘child’ is guilty of an offence and shall be liable to imprisonment for life.(emphasis mine) but did not specify the age. Age varies from one place to another. Note that section 31 (3) of the Child Rights Act provides ‘eighteen years’ or more for consent of a child to be material.

From the definitions of Rape we have above Penal Code defined it as sexual intercourse with a woman (without her consent) while Criminal Code as unlawful carnal knowledge of a woman or girl, without her consent. It is to be noted that definition of Rape in Criminal Code has covered the definition of defilement in section 218 of the Criminal Code. And if this is the case the prosecutor is at liberty to charge one who have a carnal knowledge of a girl under either sections 357 or 218 of the Code.

In Onoyiwa v State (2018) LPELR-44255(CA) the appellant was charged for rape under section 357 of Criminal Code and consequently convicted and thus sentenced to 14 years imprisonment with hard labour. The learned judge of the Court Of Appeal Ekpe J.C.A while commenting on the charge of the appellant under section 357 and not Section 218 for the victim is nine years old girl. Reasoned inter alia that;

From the language of the law, it is criminal if the said act is perpetrated against a woman or a girl. In general parlance, a woman connotes a grown up female and a girl is known as a female child from birth to adulthood. According to the dictionary definition – Oxford Advance Learner’s Dictionary – A girl means a Female Child. Suffice it to say that Section 357 of the Criminal Code also uses the words “woman or girl”to describe a female of any age. There is therefore no gainsaying the fact that the offence of RAPE as used by the prosecution in its charge against the accused person clearly has no age distinction or limit and neither is it restricted by statute.

While in Habibu v State (2018) LPELR-44722(CA) the appellant who had carnal knowledge of five years old girl was charged, convicted and sentenced to life imprisonment for the offence of rape contrary to Section 282 of the Penal Code Cap P3 Laws of Jigawa State of Nigeria, 2012 (as amended) punishable under Section 283 of the same Code. Which are in pari materia with sections 282 and 283of the Penal Code Act respectively.

From all of the above summation, we can conclude that any person who have committed an offence that fails under the definition of defilement can be charged under section 282 punishable under section 283 of Penal Code or section 357 punishable under section 358 of the Criminal Code Notwithstanding. On getting to this stage we shall look at the prerequisite ingredients of the offence of rape and defilement.

HOW OFFENCE OF RAPE AND DEFILEMENT CAN BE ESTABLISHED

In State v Masiga (2017) LPELR-43474(SC) the Supreme Court through Galinje, J.S.C held this;

For the prosecution to succeed, in proving the offence of rape, it must prove:

1. That the accused has sexual intercourse with the woman.

2. That the act was done in circumstances falling under the following:. (a) against her will; (b) without her consent; (c) with her consent when her consent has been obtained by putting her in fear of death or of hurt. (d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; (e)With or without her consent, when she is under fourteen years of age or of unsound mind.

3. That there was penetration.

The ingredients nos (1) and (3) appeared the same thing. By the definition of penetration we would later have, penetration and sexual intercourse have covered one another. Ipso facto they will be addressed as penetration. While the ingredients (2) a,b,c,d and e can be attached and explained as one because a and b are all implied absence of consent of the victim while in c and d law presumes absence of consent if the consent was obtained by the use of threat/force or impersonation. In e law presumes absence of consent if the consent is given by a woman or girl who have no capacity to give such like under aged or lunatic. For this reason, we will annex a,b,c,d, and e circumstances and address them as absence of consent of the victim/prosecutrix.

CONSENT OF THE VICTIM

Section 31 of the child Rights Act provides thus; …(3) Where a person is charged with an offence under this section, it is immaterial that‐ (a) the offender believed the person to be of or above the age of eighteen years; or (b) the sexual intercourse was with the consent of the child. We can hardly find the instances of defilement in which the consent of prosecutrix was an issue.

In Babatunde v State (2018) LPELR-44583(CA) the victim, an eleven year old girl (according to the medical report ) was defiled by a staff of her school on four different occasions. (In normal sense an eleven year old child has a mental capacity to agree and disagree to do act repeatedly, and should have a sense of reporting same to another person) but this is not an issue here, since by law and according to the Child Rights Act she is under eighteen years. The absence or presence of woman’s consent matters a lot in establishment of rape, if it was with her consent penetration notwithstanding can’t alone establish rape.

In Ofordike v State (2019) LPELR-46411(SC) it was implied that the consent could be obtained in the process of committing rape. In this case accused and one another person had forcibly dragged the victim to the bush where Ofordike was caught (red handed) raping the victim and he confessed on the spot that ‘it is the devil’ but at the trial court the victim testified; ‘that the appellant (accused) tore her skirt, her knicker and pant and that the appellant could not have erection and ordered her to caress his penis so that his penis could be erect and out of fear, she did it and the appellant was able to penetrate her. The appellant although penetration was established and there were collaboration of eye witnesses, his non-resiled confession but was only convicted for offence of attempted rape not the rape itself. The said conviction was affirmed by both appellate courts.

PENETRATION/SEXUAL INTERCOURSE

Galadima J.S.C in Posu’s (supra) stated in the lead judgment that; “the most essential ingredient of the offence of rape is penetration, however slight” Adekeye J.S.C in the same case also held thus;

“The most important and essential ingredient of the offence of rape is penetration. The court will deem that sexual intercourse is complete upon proof of penetration of the penis into the vagina. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Emission or the rupture of the hymen is unnecessary to establish the offence of rape” (emphasis mine).

In State v Masiga (supra) the Supreme Court held inter alia that; “To sustain the charge of rape, the prosecution must prove that the accused’s penis penetrated into the genitalia of the female person allegedly raped. That is the res in rem.” Per Eko, J.S.C

It is to be noted that penetration can be proved by medical report from private or government Hospital but it must be carried out by qualified Medical Doctor see Ivwighre v State (2018) LPELR-44862(CA) where it was held inter alia that; “…as long as the medical report is from a qualified Medical Doctor, whether it is from a private hospital or government hospital is a non-issue”

CORROBORATION FOR THE ESTABLISHMENT OF RAPE AND DEFILEMENT

corroborative evidence is confirmatory evidence or additional evidence to that already given. It is supplementary evidence that tends to strengthen or confirm the evidence already given which it is to corroborate. It is an additional evidence of a different character on the same point. See Blacks Law Dictionary, 6th Edition page 344 and Musa v The State (2013) All Fwlr (Pt. 692). In State v Gwangwan (2015) LPELR 504/2012 (SC) the Supreme Court held that corroboration means or entails the act supporting or strengthening the statement of a witness and it does not mean that the witness corroborating the evidence must use the exact or very like words used by the witness whose evidence is to be corroborate.

In Edwine v The State (2012) LPELR-7855 (SC), the Supreme Court per Onnoghen J.S.C Held That;

“Corroboration in respect of the offence of rape is evidence which tends to show that the story of the prosecutrix that the accused committed the crime is true. ‘Corroborative evidence is independent of that which it strengthens and discloses not only the commission of an offence but equally links or tends to link the accused with the commission of the offence’. It is, put differently, evidence which confirms in some material particular not only that the crime has been committed but also, that it is the accused who committed it. ‘Corroborative evidence may be direct or circumstantial’. In whatever form it comes, the Court must ensure that the corroborating evidence is not only independent of the main evidence it seeks to corroborate but also supports the main evidence by rendering the story of the latter implicating the accused more probable in some material particular”.

As a matter of law, corroboration of the evidence of the victim in a case of rape is not required but where the act of rape is denied see Onoyiwa v State (supra)

In Popoola v State (2013) LPELR-20973(SC), the Supreme Court also held through Peter-Odili, J.S.C thus;

“Posture for the mandatoriness of medical report would only be relevant if there was ‘denial of the offence by the accused’, which the circumstances prevailing having not supported. Also, it cannot be correct that once there is denial of the offence by an accused, no other corroborative evidence would suffice. This is because each case must be considered on its own peculiar facts and circumstances as it is not the law that once there is a denial without medical report, the Prosecution fails. What is required is that once denial is at play, the Court is encouraged to look for a medical report showing injury to the private part of the Prosecutrix or any other part of her body.” (Emphasis mine)

Corroboration depends on the facts of the case, where the accused person denies the charge, some of the corroborative evidence may include but not limited to:

(a) Medical evidence showing injury to the private part or other parts of the prosecutrix’s body which may have been occasioned in a struggle; or

(b) Semen stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed. See Afor Lucky v The State (2016) LPELR 40541 (SC) ,Habibu v State (supra) And Masiga v State (Supra) But defilement must be established by corroboration. Section 218 of Criminal Code provides that; …A person cannot be convicted of either of the offences defined in this section upon the uncorroborated testimony of one witness. Notwithstanding the fact that the Court had satisfied itself that she understood the duty of speaking the truth as required by Section 209 (1) of the Evidence Act, 2011, by virtue of Section 209 (3) of the Act, evidence given by a child below fourteen years old shall be corroborated. See Obri v The State (1997) LPELR – 2194 (SC); Dagayya v The State(2006) LPELR – 912 (SC)

In the case of Iko v The State (2001) FWLR Pt. 68 1161, the Apex Court held that in most cases of rape it is difficult to secure corroboration from the evidence of an eye witness that the accused person inserted his penis into the vagina of the victim. This fact makes the establishment of defilement more difficult than that of rape.

In Babatunde v State (supra) the court of appeal intervened the conviction of the appellant by trial court on the ground of absence of corroboration despite the fact that medical report have showed that the victim’s vagina have been penetrated several times but no witness was there to testify seeing the appellant while defiling the victims.

The learned Judge Fatima Omoro Akinbami, J.C.A. expressed her feelings by way of obiter after allowing the appeal in the leading Judgment thus;

“This is a very sad case, where a child eleven years old, has been severally sexually assaulted. The prosecution was unable to get the accused person convicted for the offence, even when he was caught at the scene of crime. I am of the view that there is need for the Legislature to review the offence of rape. In this instant case the prosecutrix, an eleven year old girl was “abducted” by her teacher proprietor of her school. He took her to the spot where he was going to rape her even though he was not caught in the actual act of raping her. I am of the view that the mere act of taking this child to the venue must attract “punishment”. It is very unfortunate that the State is unable to avenge the assault on this innocent child. I appreciate the pain the trial Judge, a woman went through in her effort to get succor for this child”

CONCLUSION

The act of rape and defilement are by nature grave, devastating, traumatic as they reduce the totality of the victim’s personality, and because of same the punishment allotted to the offences are severer and detrimental. Adekeye J.S.C in The Posu’s case while commenting on the light sentence given to a convicted rapist by trial court said;

“I cannot but remark that the sentencing policy of judicial officers needs to be revisited. The purpose of the criminal law is to prevent harm to the society. The offence of rape is by every standard a grave offence which often leaves the victim traumatised and dehumanised. A light sentence as in the case of the appellants must never be imposed. This may have the unsavoury effect of turning rape into a past-time by our flippant youths”. However, emphasis must be placed on the fact that assertions of such offences should be backed by strong evidence of one kind or another to the assurance that the prosecution established it’s case beyond peradventure because the offences do not only touch the personality of the victim but also the of the accused.

About the author

Alkasim Abubakar (A.A.M.G), is a student of the faculty of law, ABU Zaria. A seasoned legal scholar and researcher. He writes from Zaria. He can be reached via [email protected]

08033131653

Copyright Reserved

2019

For knowledge and Justice