THE MALADY OF RAPE OFFENCE IN NIGERIA : THE STANCE OF THE LAW REVISITED BY INNOCENT CHIWUOKEM SYLVESTER

As high-profile cases of rape continue to make headlines in Nigeria and beyond-and as rape survivors appear to relent in reporting crimes- it can help to have a better understanding of the laws on rape and the reasons for delayed report of the crime as well as the effect of the statutory time frame within which legal actions can be instituted against perpetrators of rape.

Historically, women have always been subjugated and oppressed by men in most cultures in Nigeria. This situation is due to the inequality in gender relations between men and women. Rape has always been with mankind throughout the world. 

However, in recent times, the incidence of rape has increased in Nigeria. The hegemonic patriarchal values and practices make it difficult for women who are raped to obtain justice. Perpetrators often go unpunished even if the victims have the courage to report the incident. The court acquits most of the rape offenders on account of the lack of evidence or because the victim has a ‘questionable’ character. Owing to this, rape victims suffer in silence due to the stigma and humiliation attached to the public acknowledgement of rape.

This situation has caused for an uproar in the Nigerian Society as persons protest against the rising of Rape offence in the country. 

This article recommends the need for more practical ways of implementing laws on rape against women so that victims can obtain justice and also for the offence of rape to be accorded to the both sides that is the male and the female genders.

At common law, rape was defined as forcible, unlawful sexual intercourse without the individuals consent. Based on this definition, rape excluded interactions between spouses.

Because rape at common law had to be unlawful sexual intercourse, a husband could not be convicted of raping his wife. 

Further, although the common law defines rape as involving sexual intercourse, the act was considered completed upon even the slightest penetration of the female genitalia. Full penetration by the male was not required in order to obtain a conviction and neither was emission. This was expressed in the case of De Armond v. State, 285 P.2d 236 (Okla. 1955).

Common law no doubt operates in the Nigerian legal setting but however its operation is permitted to the extent it is allowed to do so by our locally enacted laws. 

This goes to state that the concept of the offence of rape will be looked into by the provisions of our own locally enacted statutes.  

Section 357 of the Criminal Code Cap “C38”, Laws of the Federation, 2004 defines RAPE as having 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 act, or, in case of a married woman, be personating her husband.

The big question now becomes what is ‘Carnal Knowledge’ and ‘Unlawful Carnal Knowledge’.  

Section 6 of the Criminal Code answered the above questions. 

It states that : “when the term “carnal knowledge” or the term “carnal connection” is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration.  “Unlawful carnal knowledge” means carnal connection which takes place otherwise than between husband and wife”. 

Section 282 of the Penal Code Law States on rape as follows:

“282 (1). A man is said to commit rape, who save in the case referred to in subsection (2) 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 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.

Reliance will be placed more on the Criminal Code in this article. 

The Supreme Court in the case of SALISU MAMUDA v. THE STATE (2019) LPELR-46343(SC) held that 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 also :  [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. 

The court in the case of [Jegede V. State] (2001) 14 NWLR (Pt 733) 264 held that : in proof of rape, 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. 

Also the court in the case of Ogunbayo V. State (supra) held that :”The important and essential ingredient of the offence of rape is penetration. Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. Emission is not a necessary requirement. Any or even the slightest penetration will be sufficient to constitute the act of intercourse. Thus, where penetration is proved but not of such a depth as to injure the hymen, it wili be sufficient to constitute the crime of rape. Therefore, proof of the rupture of hymen is unnecessary to establish the offence of rape.”

Furthermore, in proof of penetration, the law is trite that partial or incomplete penetration Is sufficient proof of the offence of rape and authorities both at Common Law and also under our Statutes are in unison on this point. It is pertinent to note at this point that penetration can only be done with the Penis of the man into the Vagina of the woman. If Penetration is done with any other instrument or object, it can only amount to an Indecent Assault and not Rape. Also, it is important to note that all the ingredients of rape must be established and in existence before the offence of rape can be said to be committed. Where all the ingredients are in and penetration was prevented from taking place, we can now term such act as an ‘attempted rape’ and not rape itself. Section 358 of the Criminal Code stipulates that the offence of rape is punishable by imprisonment for life, with or without caning.

Because of the failure of the Criminal Code to capture vividly the concept of the offence of RAPE, the National Assembly enacted a new Act known as the VIOLENCE AGAINST PERSONS PROHIBITION ACT, 2015 which seeks to majorly expand the scope of the offence of Rape in Nigeria. 

The Violence Against Persons Prohibition Act (VAPP Act) 2015 is a Federal law that has only been domesticated in Lagos, Anambra, Ebonyi and Oyo State. It can only take full operation in other states when it is domesticated also. 

Section 1 of the Violence Against Persons Prohibition Act “A person commits the offence of rape if he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his/her body or anything else without consent, or the consent is obtained by force”. 

From a clear perrusal this section of the Act, it’s contemplation by the use of the word ‘he or she’ is that a man can rape a woman and a woman can also do same to a man.  It also suggests that the offence of RAPE has gone beyond penetration of the vagina by a penis but penetration with objects into the anus, vagina or mouth of either of the genders.  

The VAPP Act is also a little more expansive in its interpretation, as it makes provisions for both male and female sexual offenders. It also takes into consideration in another section the rape of a person by a group of people (commonly referred to as ‘gang rape’) which is the first of its kind in Nigerian laws.

Having considered the above, the VAPP ACT seems to be also problematic as it did not cover certain areas it is expected to cover and it’s provisions is not lucid enough to interpretation. 

The Act in the writers view merely rebranded the offence of Indecent Assault into Rape as use of objects in a woman’s vagina, mouth or anus should not suffice as rape but indecent Assault. 

The Act also did not lucidly state when a man can be raped. This is because the mere mentioning of the use of an object on the anus or mouth of a person that is a man is an act rarely seen to be done by women. However, the Act isolated the situation when a man can be forced to have a sexual intercourse with the use of threat by a bevy of girls or a girl without his consent. Such scenerio was not contemplated by the Act as a rape offence and as such does not reflect equity as regards the offence of rape towards men. 

Having stated the above, certain provisions of the law and judicial pronouncements however have been seen as not portraying justice and equity in its form as it relates to the offence of rape especially the evidencial requirements. 

Firstly, in the case of Posu v. The State, the Supreme court held that was the duty of the prosecution to prove the ingredients – the actus reus and mens rea of rape beyond reasonable doubt. Hence, the prosecution must prove that the accused had non-consensual sexual intercourse, involving vaginal penetration with the victim. They must also prove that the accused intended to have sexual intercourse with the victim without her consent or acted recklessly by not caring whether the victim consented or not.  Furthermore, the English case of D.P.P v Morgan (another outdated English piece of law), is still valid under the Criminal Code Act of Nigeria.

In DPP v Morgan, the court held that a defendant should be acquitted if he had a mistaken but honest belief of consent by the victim, even if belief in consent was unreasonable. The implication of this is that a defendant can claim he honestly believed the victim was consenting, even though his reasoning behind that belief is utter bullshit, and still be held not guilty!  

The worst part is that it is for the prosecution to prove that that the defendant did not honestly believe the victim was consenting. From proving the physical act of vaginal penetration to the state of mind of the accused, this burden is extremely onerous for the prosecution. It results in a lack of faith in the justice system. 

Secondly, Section 211 of the Evidence Act, 2011 allows the defense to prove the woman is of ‘immoral character ’by cross-examining her on her connections with other men including the accused’. 

This position of the law is obviously obtuse because it is based on the harmful assumption that if the victim previously consented to sex, with the defendant or anyone else, then she definitely consented at the time of the incident. Allowing evidence of sexual history, to be admitted in a rape trial, indicates that the Nigerian law believes that sexually active women are somehow less believable and incapable of being raped. 

A Woman’s sexual history is of no relevance to the case, as RAPE IS NOT SEX BUT VIOLENCE. A previous or ongoing sexual relationship with someone does not give them unfettered access to her body.

Thirdly, Corroboration is confirmation, ratification, verification or validation of existing evidence from another independent witness or witnesses. It means – can your accusation be backed up by others? 

Under Section 200 of the Evidence Act 2011, it provides that a defendant can be convicted on the uncorroborated evidence of a single witness. Therefore, corroboration is not an actual necessity in proving a criminal case.

However, a study of Nigerian rape cases shows that Judges require corroborated evidence before awarding a guilty verdict in a rape trial. Cases such as IGP v Sunmonu and Iko v State, among others, have validated the requirement for corroboration before awarding a guilty verdict. 

In Iko v State, the judge openly stated that ‘despite the fact that the corroboration requirement is only practice in Nigeria; it has become a compulsory practice, which is dutifully observed by judges’. 

It is almost impossible for the victim to source an independent witness as the crime of rape. It often takes place in private by someone often known and trusted by the victim. Hence, such a requirement dissuades many victims from reporting the crime and seeking for justice. It is very unfortunate that in the law’s attempt to protect the defendant from false accusations, the rights and dignity of victims are extinguished. 

RECOMMENDATIONS 

Having identified the above issues and lacunas needed to be filled in by the law, the following are the writers recommendations. 

– Corroboration should not be extinguished as a requirement for the offence of rape however it should not be made a mandatory requirement as some rape cases takes place in private places where no one is. 

– The burden of prove required to be done by the prosecution in a rape case should only be the actus reus that is the physical element of penetration and not the mens rea that is the the state of mind of the accused person. However, the prosecution can prove such to add to his case but it should not be mandatory. 

– The sexual history of a raped victim can help the court in determining whether or not she consented to the rape but however, the court should not dwell on that to dismiss a case of rape. This is because the woman may consent to other sexual intercourse situations but not that particular one that amounted to rape and the accused may want to hinge on her past sexual history as a defence for determining her consent.  

– The VAPP ACT, 2015 and the Criminal code should be amended to reflect situations where a man can be forced into having sexual intercourse with a girl or bevy of girls using threat and without consent as rape. 

The VAPP ACT, 2015 should also vividly differentiate between the offence of Indecent Assault and Rape as the both offences seem to be one now and prescribe the adequate punishments. 

– The punishment for the offence of rape should be amended to read Death penalty as such will deter the perpetrators from committing the said offence. 

It is the writers hope that the recommendations above should be looked into by the appropriate authorities as such will reflect equity and justice with regards to the offence of rape. 

CONCLUSION: 

Conclusively, the offence of Rape is a malady in the society and as such should not be encouraged at all in any way. Rape is condemnable, it is an unjustifiable act in our society and it is, finally, time that we rise as a nation to condemn and eradicate this despicable act. Victims of rape are made to suffer unquantifiable anguish, some become diagnosed with post-traumatic stress disorder, dissociation from reality, depersonalization, they endure physical violence, avoid social life, get infected with sexually transmitted infections, encounter serious difficulty in remembering events, relives moments of sexual assault and unwanted pregnancy amongst other ills.

The severity of the offence of rape cannot be over emphasized. Little wonder why a lot of pundits have advocated strict punishments for the offence and to a very reasonable extent, I queue into this line of thought because the major essence of the law is to deter persons from doing a particular thing. In a situation where the law looses it’s efficacy of deterrence, what then it’s fate?  

The punishment life imprisonment for rape cases has lost its deterrence factor which has escalated the issue of rape in the recent times in Nigeria. Just recently, a former Exxon Mobil Engineer was sentenced to 15years imprisonment for raping tenants niece. 

Also, a girl known as Vera Uwaila Omozuwa was raped and murdered in a church where she went to read.  These instances will suffice to state that there is need to intensify the punishment for rape to a higher one such as death by hanging to at least restore the deterrence factor of the law prohibiting rape. I will drop the pen by quoting the exact words of Honourable Justice I. T. MUHAMMAD. JSC  in the case of ISA V KANO STATE (SC.35/2013)[2016] NGSC 62 (29 JANUARY 2016) where he stated thus :

ABOUT THE AUTHOR 

SYLVESTER INNOCENT IS A 400L STUDENT OF ABIA STATE UNIVERSITY, UTURU. 

HE IS CURRENTLY THE GENERAL SECRETARY OF THE ABSU BAR COUNCIL. 

HE IS AN AVID READER AND A PROLIFIC WRITER.

                  COPYRIGHT RESERVED 

For knowledge and Justice