RAPE RAPED BY LAW: POSITION AND DIVERGENCES.

Rape is one of the oldest crimes in human history. Rape is a crime in all countries of the world but definition and punishment differ from place to place.

Herein, we shall tacitly define the term “rape” from three different provisions and examine holistically essential pointers of rape’s nitty gritties not excluding recourse to the position of the law and the divergences found therein.

On what rape is : I’ll simply define it as a sexual intercourse between a man and a woman or a girl against the will or consent of the female partner. In Nigeria for instance, it is caused by different factors both immediate and remote such as negative and judgmental societal attitude towards victims of rape, drug abuse, pornography, seductive dressing, spiritual reasons, etc.

Going by the provisions of law, we will first consider definition of rape from our Criminal code. Rape is defined under section 357 of the Criminal Code which applies to the Southern part of Nigeria as:

X-raying it from the Northern part of Nigeria, it is defined under section 282 of the

Penal Code as:

(1) A man is said to commit rape who … has sexual intercourse with a woman in any of the following circumstances:-

(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 the 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.

(2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.

From, the above definitions, it is clearly deduced that from Nigerian parlance, rape can only be perpetrated by a man against a woman and not vice versa. However, what looks like a reverse of the case is where a woman aids in the act of rape, she becomes an accomplice of same and by extension, seen to have committed the same offence as provided by Section 7 of the criminal code.

This is rather in my opinion a limited view on the definition of rape. This reason necessitates the third provision as I take cognisance of the definition of rape from the western parlance which further posits that rape can be committed against a man as well and can be perpetrated by any person including a woman. For Instance, in the US, the Department of Justice defines rape as:

This definition seems wider by covering both genders, as well as including every living or non living object as an instrument of forceful penetration seeing it to cause the same effect of rape when once two factors (lack of consent and penetration) has been proved. This act of penetration can be committed on both man and woman ( in the anus of a man by a man with penis or in the anus of a man by a woman with a finger or other objects). However, this definition does not seem to cover area of forceful sex by a woman on a man or where ganged women forces a man on them. In such case, is the man raped? This is still an area yet to be treated by any law.

The above definition went further to make clear the infinitesimal nature that the penetration might be but yet is rape. There mustn’t be need for physical injuries to establish rape, not even a need for any ejaculation, in fact the hymen can still be intact and yet rape is committed. Yes! Only that infinitesimal tippy Penetration is enough.

Under Nigerian law however, anal Penetration is not rape but sexual assault unlike the above US definition. The Nigerian law distinguishes the both as well as defilement. While in rape, there must be a penetration of vagina with a penis without the consent of the female counterpart. In sexual assault, there need not be sexual intercourse at all, e.g is unpermitted touching of a woman romantically. In the case of defilement, on the other hand, it is a sexual intercourse with a girl under eleven (11) years. It is immaterial in this situation whether there is consent or not as the law presumes that such a girl is incapable of giving consent. The crime also carries life imprisonment but the case must be prosecuted within two months of its commission.

Also, a boy under 12 years whether he has attained puberty or not cannot be held liable for rape under section 30 of Criminal Code. However, he may be convicted for indecent assault.

We must also note that attempted rape can never be rape, hence when once Penetration cannot be proved, rape cannot stand, but at best, attempted rape with a 14yr imprisonment as stipulated in section 359 of Criminal Code. It is not even a defence for rape that “she dresses seductively”, you have the prerogative of choice, hence you chose to do it.

This is why, a man who rapes a prostitute can be tried. However, seeing that prostitution is not giving credence under Nigerian law, any contract between both parties cannot be enforcible under the law but that does not give the man the right to rape, maybe to reclaim his money probably after refusal by the prostitute to give him sex.

Rape is rape irrespective of who is involved. The rape victim even has a right to sue for financial compensation after trial and conviction of the accused. This is what is obtainable under Nigerian parlance.

In United Kingdom, the provision of section 1 of the Sexual Offences Act (2003), posits thus:

(1) A person (A) commits an offence if—

a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) (B) does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents…

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

The UK’s definition has dissected into bits the element of consent and the degree it must be averred.( consent is explained further below). It went beyond the vagina to include the mouth and the anus of any person ( covering both gender) as areas that could be penetrated and seen same as rape.

We can generally see the similarity from the both western views as opposed to the Nigerian view. I’ll infer from UK’s definition and that of the US that rape facilitating objects goes beyond the penis and the vagina to other objects such as mouth, anus, fingers, etc as far as lack of consent and Penetration has been established. It further clears the doubt that the the act of rape can be committed by and on both genders.

This position though not yet adopted under Nigerian jurisprudence is recommended for adoption as our contemporary society is evolving and the law is obliged to do same alongside it. Thus, I’m adopting this recent recommended transformation of the law in this work irrespective of the Nigerian law positions found therein.

Revealing further insights on consent, It refers to permission or freedom and capacity to make a choice on whether to have sex or not. When a person especially a woman says “no” to sex, her “no” should be taken as “no”.

When a person who gives his/her consent to a sexual intercourse at the beginning later changes his/her mind in the course of the “act” or when such persons has not giving their consent at the beginning but before doing same, they were penetrated, Can it be said that there is rape in any of the situations?

Under the Nigerian law, it is doubtful if rape can be successfully proved in any of the two cases because “consent” is not clearly defined in the Criminal or Penal Code. However, under the UK’s Sexual Offences Act in sections 75-76 consent is extensively defined and it amounts to rape, if a man continues sexual intercourse after a woman withdraws her consent or starts a sexual intercourse where there is no consent, not minding the fact that consent was given midway.

A vital element of consent which though not expressly stated but can be implied by the wordings of the different Acts is the fact that a penetration during state of insanity and unconsciousness like sleep amounts to rape as there’s lack of consent. It must be stressed that consent can be express or implied depending on the circumstances but must be in the language peculiar to both parties if its implied and must be proved to have been giving on previous note by such gestures, signal or movements.

Having established the positions on what rape, consent and Penetration is, another question is what is required of a victim of rape after such dehumanisation?

A victim of rape must first proceed to a nearby Police Station to lodge a complaint while maintaining same status during the abuse i.e (remaining on same dress, not going for a shower after the incident and leaving everything from the scene of crime untampered with) as these factors strengthen the weight of evidence against the perpetrators. More often than not, the Police takes the victim to a hospital for medical examination which is advisable to be carried out as fast as possible, preferably on the day of the incident.

It’s a notable fact that at times, the police fails to act after a report and on such note, the victim should write a petition to the Commissioner of Police in that State, giving details of the officers who attend to her on the day her complaint is lodged, the name of the Police Station and other necessary information. If this step does not produce a desired result, she may contact a lawyer. Additionally, there are various NGOs that provide legal assistance and support to

The prove of Penetration, lack of consent and sparingly lack of peaceful marital relationship between concerned parties (the perpetrator and the victim) grants one(the victim) the ability to successfully establish a rape case in Court. “Sparingly” as used above infers that marriage as a veil of defence from rape whilst accepted under Nigerian laws, is rarely attached much weight especially in the western parlance considering their current acclaimed position that a man can rape his wife.

It must be noted that a man can be charged of rape on his daughter since incest is not a written law under Nigerian law but under other climes, he’ll be charged of incest as it’s an offence in most other climes.

On material evidence to prove rape, an essential material is medical evidence, which is though very necessary but not compulsory as Real evidence such as confessional statement of the accused and a reliable first hand eye witness evidence could ground conviction for rape without medical evidence. However, this is rarely achievable in practice which tends to place the relevance of medical evidence.

Also notable is the fact that Medical evidence from Government hospital has more acceptability rate compared to its private counterpart. It is very pertinent to note that a rape suspect may obtain the services of a lawyer of his choice but if he is financially handicapped to secure one, the State is not obligated to provide him a legal representative free of charge, unlike in the case of persons standing trial for murder or armed robbery.

While the rape victim has no need of a personal lawyer in the case as the Ministry of Justice ensures that the perpetrator is charged to court and prosecuted accordingly and a lawyer from the Ministry, will be a legal representative of the State as well as the victim. Rape, being a criminal case, is regarded as an offence against the State and this is why the victim will not have to pay any money to the Government lawyer for him or her to prosecute the perpetrator.

However, a victim is free to secure the services of an independent lawyer who attends court each time the case is heard. Such a lawyer is known as “watching brief counsel” as he or she can only be seen but cannot be heard.

On jurisdiction of court within Nigerian parlance on the subject matter, we should note that it is ranging from the State High Courts to the apex court that can entertain such matters as it’s a serious offence. A Magistrate’s Court is only allowed to temporary keep the case in abeyance before it is properly brought to a High Court.

Technically and legally speaking, in Nigeria, a rape victim cannot withdraw the case in court as only the AG can discontinue such case. Any attempt from the victim to do so amounts to an offence under section 127 of Criminal Code However, in practice, this section is rarely giving credence, in fact, a case of rape may be struck out by a court, if a victim refuses to attend court for the purpose of giving evidence. Also, it is the duty of the prosecutor to ensure witnesses appear in court through court injunctions though with the assistance of the victim mainly on information.

A man accused of rape is not entitled to be released on bail by the Police. Though a bailable offence, the bail can only be granted by a State High Court. However, in some states of Nigeria, bail can be granted by a magistrate court on a rape suspect. Upon arrest by the Police, the suspect cannot be detained beyond 48 hours as he must be taken before a court of law, usually a Magistrate’s Court which will order the detention of the suspect in prison custody, pending his proper arraignment in a State High Court.

More so, a rape case cannot be heard in court with media cameras present to and the victim is not allowed to wear mask in court so as to enable the court to watch his/her demeanor while giving evidence to ascertain his/her credibility.

However, only children of tender age that enjoys this privilege on application by the prosecution and evidence by them is allowed on camera as supported by section 34(4) of CFRN 1999 (as amended). Also, a rape victim can be asked discomforting questions in court to ensure the accused will not be unjustly punished but a question of ridicule is highly prohibited under Sections 227,228 and 234 of Evidence Act.

Conclusively, we see that the effect of rape is endless as rape is a heinous crime which leaves its victim emotionally disorganised, leading to unwanted pregnancy, transmission of sexual diseases e.g. HIV/AIDS, abortion, suicide.

Punishment for rape differs as well in different climes. For instance, in Nigeria, it’s life imprisonment (maximum but it may be less), in India, it is life imprisonment or death, in France, it’s 15 years imprisonment to death, in US, it’s life imprisonment, in UK it’s life imprisonment, in Saudi Arabia, it’s death, in North Korea, it’s death, in Israel, it’s 16 years imprisonment, in China, it’s death, in Egypt, it’s death. Etc.

A false allegation of rape on a man has no criminal liability in Nigeria, however, if after trial, a suspected rapist is found to be innocent of the allegation, he may bring a civil action (technically called malicious prosecution) to claim for damages

I humbly solicit for a review of the punishment of rape in Nigeria, which will require judicial officers not to impose penalty below 14 years imprisonment where rape is established, while in some other cases maximum punishment should be imposed, especially if established that the perpetrator is a serial offender.

The law as it is appears to give judicial officers wide discretion in terms of the punishment they may impose. It is noted that in some cases that judicial officers impose penalty which is considered ridiculously low as was in the case of Ogunbayo v. State (2007) 5 SCM 154, where the trial court found the accused person guilty of rape and imposed 7 years imprisonment on him with an option of fine of N5000. What abuse of power!

Also, as I earlier recommended, I think Nigeria should review it’s definition of rape to be wide as that of US.

Finally, I’ll conclude by borrowing the spirit of the law from the statement of Mehmet Murat ildan as he says “Anywhere in the world, if you see a law which is protecting the rapists, you must know that this law has been prepared by the rapists!” And flowing from his statement, I say, the law is here to rape the rape of the rapist, to rape the rapist who raped the victim, an innocent child of the law.

Let us at all times see the law as the last hope of the common man.

For knowledge and Justice