Spousal Rape: Possibility of A Man Raping His Wife under the Nigerian Law

Abstract:
Over the years, different countries, scholars, writers, and activists have come up with different definitions of the term Spousal Rape.To some, it is regarded as an absolute crime and infringement on the rights of either of the spouses, the woman in most cases. Whereas to some others, it is nothing but an obnoxious oxymoron, an idea of great fallacy.As a result of the conclusions arrived at by many, the need for further research and clarification on the above subject matter is both timely and urgent.

Hence, this paper aims to answer the research question of how possible it is for a man to rape his wife using the Nigerian law as case study. The study is socio-legal in nature, and the legal position of spousal rape in Nigeria is the basis of this study; this paper intends to bring to fore the position of the law on this rather controversial and perplexing social and marital reality that has become a huge threat to marital harmony and bliss in this age.

Keywords: Rape, Spousal Rape

Introduction:
Rape which stands as the greatest form of sexual assault, is seen as any unlawful nonconsensual carnal knowledge of a girl or woman by a man, that is punishable with life imprisonment with or without whipping. The offence of rape in Nigeria is entrenched in section 357 and 282 of the Criminal and Penal Codes respectively.

According to section 357 of the Criminal Code:
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 or fraudulent representation as to the nature of the act, or in the case of a married woman, by impersonating her husband, is guilty of rape.

Rape in the field of medicine is defined as penile penetration of vulva. It is basically the act of forcing sexual intercourse upon another person without their consent or against their will which could be through either vaginal or anal means.

Spousal Rape

Spousal rape also known as marital rape is the non-consensual sexual intercourse in which the perpetrator is the victim’s spouse. It is the type of sexual intercourse or harassment that involves in most cases a husband having sexual intercourse with his wife without her consent. It is a form of partner rape, of domestic violence, and of sexual abuse. Spousal rape occurs when one partner forces the other to take part in certain sexual acts without the other’s consent.

It is a form of intimate partner violence by which one spouse attempts to establish dominance and control over the other. Marital rape is a type of sexual relationship whereby there is abrupt use of coercion, threats, and sometimes the use of illegal drugs or alcohol by either of the spouse, usually the husband in order to bring to subjection, the freewill of the other in relation to a sexual desire at hand.

Spousal Rape under the Nigerian Law

The pertinent issue to be considered in this section is; whether or not the Nigerian Criminal jurisprudence recognizes spousal rape, that is, the possibility of a man being guilty of raping his legally wedded wife. Giving a critical examination of section 6 and 357 of the Criminal Code Practicable in Nigeria, it would seem literal that a man, according to the meaning of rape under the law, would be in the negative position as regards to the above mentioned question. This is because a combined effect of sections 6 and 357 of the Criminal Code, points out that a man cannot rape his wife.

The phrase “unlawful carnal knowledge” as used by the criminal code, denotes carnal connection which takes place between a man and woman who are not legally married thus binding the above stated assertion. Aside this is also another provision under section 282 of the Penal Code which provides for the attainment of puberty by the wife, as the limiting age. This means that sexual intercourse between a man and his wife is not rape providing that she has clocked the age of puberty.

The Nigerian legal system practices what is known as the marital rape exemption. This entails the belief according to the customary law, that the incident of rape by a man on his wife does not exist reason being that as a result of the payment of bride price by a husband, his wife automatically becomes his property and as such he becomes legally enabled to have his way with her notwithstanding her disposition, and further grants him the right to even discipline her and have sexual intercourse with her at freewill. In other words, she becomes a subordinate and an owned property.

Spousal rape exemption did not just start in Nigeria; it’s a practice that has been in existence since the eighteenth and nineteenth centuries. Since its inception, it had a gross share in the activities and obligations possessed by husbands and wives under their relationship, and thus operated under the common law principles of Covertures. The common law principle of covertures explicitly subordinated wives to husbands.

In the nineteenth century, William Blackstone whose treaties on the laws of England were extremely influential throughout the United States of America and the Commonwealth, gave an apt definition which illustrated the subjugation of women. According to him:
“By marriage, the husband and wife are one person in law, that is the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband under whose wing, protection and cover she performs everything. Upon this Principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquire by the marriage.

The principles of Covertures united a husband and his wife on the basis that the law of nature and divine revelation jointly, designed the husband as the head of the family and placed the wife as the one who would depend on, love, cherish, and obey him. It particularly acclaimed to the law of nature which gave strength to the man and feebleness and dependence to the woman. As a result of this spousal rape exemption became very much applicable to many parts of the world from the nineteenth century till date. The Nigerian criminal jurisprudence sees the concept of spousal rape as something that does not exist; and if for any reason a man should have to force his wife to have sexual intercourse, it will not lead to any form of sanction or punishment.

The two major religions in Nigeria – Christianity and Islam, have their positions or views on the matter of spousal rape exemption being operated in Nigeria.
Under Islamic religion, a woman cannot refuse to have sex with her husband except on grounds of ill health. It is also said by one of the Hadith’s that a woman who turns down the sexual advances of her husband remains cursed by all the angels of Allah through such period of refusal. It’s also pertinent to highlight the fact that under the Islamic religion, Zina which is rape, is explained as “sexual intercourse between a man and a woman without the legal relationship of husband and wife existing between them”, meaning that sexual relationship between a husband and wife is lawful and however it is performed, it cannot be seen as Zina.

In Christianity also, a wife is admonished not to or never deprive her husband the pleasure of her body, St. Paul in his teaching highlighted this. From the eyes of the law and religion (Christianity and Islam), one can easily deduce or conclude that a man cannot be held guilty of raping his wife as there is no such law against it. Notwithstanding, there are exceptions to the above general rule of a husband not being guilty of raping his wife.

There are certain circumstances when a man can be found guilty and charged for raping his wife; examples of such circumstances include:

(a) Decree of judicial separation: In Clarke, it was held that where a competent court has ordered a decree of judicial separation, the wife is no longer bound to cohabit with the husband.

(b) Where there is a Divorce Nisi. In R .v. O’ Brien, Park J. held that a decree nisi of divorce effectively ended a marriage and so it was possible for the husband to rape his wife.

(c). Also, where an injunction has been granted against a husband from molesting his wife or where he has given an undertaking to the court not to do so, a similar situation will apply.

The above examples illustrate the situation where the nature of the marital relationship between the husband and the wife has been altered by the court, therefore any act of forceful, violent or non-consensual sexual intercourse will amount to rape.However, a husband whose marital relationship with his wife has not been altered by the court as in the above examples, if he uses force or violence on his wife to obtain intercourse, may be guilty of indecent assault or wounding his wife.

Conclusion
There is no doubt that the issue of spousal rape has stirred up a lot of controversies, hot debates and arguments from different quarters from time immemorial till date; hence the need for objective and certain position on the matter. Also, giving the fact that in recent times, there has been very intentional activities of feminism and woman power adjudication; which are against the old and customary practices that subdued and sidelined the sexuality of the female gender, Nigeria as a country is expected to have a rethink and second look at the position of the law as regards this indemnifying mold.

Recommendations:
The following are therefore the recommendations of this paper:

1. There should be a full-fledged appreciation and actualization of laws like the Violence against Persons (Prohibition) Act 2015 across the country. Section 1(1) of this VAPP Act defines the term rape elaborately, it defined what it entails and portrays ways through which it could be carried out. Section 45(2) of the Act gives priority to the matters it covers. It provides that where other laws make provisions for areas that the VAPP Act has covered, the VAPP Act will supersede.
Provided the victims come forward, the offence of spousal rape is punishable under the VAPP Act 30 where it is proved beyond reasonable doubt by the prosecution. It is therefore, recommended that the judiciary and other law enforcement agents should see to the application and execution of the law where and when applicable.

2. The VAPP Act should not only apply to the FCT and other few other states of the Federation, it should be a binding law across all the states in Nigeria; to serve as a siege within the walls of marriage, since marriage is a legal union between a man and woman that should entail equal respect of rights and privacy as the case may be, it should not be seen as an institution that seizes the decision making ability of the woman or one that sees her as a property that could be purchased, treated harshly or done away with.

3. It is also recommended that victims of rape in any form or shade (married or single) be given adequate protection by the law enforcement agencies; their identities should be kept secret and confidential and they should not be stigmatized under any circumstance.

4. The law should also see to it that good medical care and rehabilitation is given to victims of rape and that they are adequately compensated.

5. The law on prosecution and punishment of those culpable or guilty of rape should be effectively executed or enforced to serve as deterrent to potential rapists.
Also women should be treated with utmost respect and prestige they deserve, because though they are weaker to men; this weakness is only physically and not spiritually – before the Almighty God are equal.

About the Author 

Chikezie Joseph Kambai is a year 2 law student at the Prestigious Ahmadu Bello University Zaria. He is a prolific researcher, legal writer, social change activist, and IP enthusiast. His interests in the legal space includes Entertainment Law, Sports Law, and Commercial Law, etc

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