The evolution of the society is one of it’s characteristics. No society remains static, and as it grows, the laws evolve and embrace progress too. Hence, a good law is dynamic, and if it isn’t, it becomes archaic, barbaric, and ancient.There are quite a number of our laws today that need a second check, an amendment, or even a repeal.
The focus on this work would be on Sections 357 of the Criminal Code and Section 282 of the Penal Code which needs immediate amendment, these sections focus on rape. Rape is the 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. It may be stated differently by saying that rape, means a forcible sexual intercourse with a girl or woman without her giving her consent to it.” Per PETER-ODILI, J.C.A. (Pp. 18-19, paras. E-A)
In the case of Iko v. State (2001) LPELR- 1480(SC) per KALGo J.S.C defines rape thus, “rape” in legal parlance means a forcefully sexual intercourse with a girl or a woman without her given consent…” See also Ndewenu Posu v. State (2010) LPELR-4863(S.C), Again see Ogunbaye v. State(2007) LPELR- 2323.
It is important to always remember that rape can happen to anyone but it is never the fault of the survivor, under any circumstances; it is ALWAYS the fault of the rapist. Rape is a deliberate and conscious decision. No one would be ignorant of the fact that rape is a crime in Nigeria, but, sadly it happens to be the order of the day in Nigeria. Unfortunately too, the statutes that guides us are still archaic. There is an urgent need for amendment!
There are statutes that deal with rape in Nigeria;
1.The Criminal Code-This is applicable in all Southern States
2.The Penal Code-This is applicable in all Northern States
3.The Criminal Laws of Lagos -this is applicable only in Lagos State
4.The Violence Against Persons Prohibition Act-this is applicable only in the Federal Capital Territory
5.The Child Rights Act-This is available in states that have domesticated it.
Under the Criminal Code of Nigeria (Section 357 & 358), Rape is defined 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.” This offence is punishable by imprisonment for life, with or without caning.
Under the Penal Code of Nigeria (Section 282), “A man is said to commit rape who has sexual intercourse with a woman in any of the following circumstance: against her will; without her consent; with her consent, when the consent is obtained by putting her in fear of death or of hurt.”
Under the Criminal Laws of Lagos State (Section 258) “Any man who has unlawful sexual intercourse with a woman or girl without her consent, is guilty of the offence of rape”
Under the Violence Against Persons Prohibition Act (Section 1) “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”.
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.
Diving deep into the criminal code and penal code, we can notice lacunas. According to the provision of Section 357 of the Criminal Code, “rape occurs when a person has unlawful carnal knowledge of a woman without her consent, if with her consent by means of threat or intimidation, by means of fraudulent misrepresentation as to the act or by impersonating her husband”. The meaning of unlawful carnal knowledge is expressly provided for in section 6 of the criminal code. It defines carnal knowledge as: “Carnal connection which takes place otherwise than between husband and wife.” The section also further states that an important element of carnal knowledge or carnal connection is penetration. The slightest penetration of the vagina by the penis is sufficient. It is not necessary that the hymen was ruptured or there was ejaculation. The code does not recognize that the penetration of a woman or girl’s anus or mouth could be equally as traumatic as the vagina and that it should be considered as one of the elements which may constitute rape. Only a woman or girl may be raped as far as the wordings of the code suggest. Even though in this day and age, there have been cases of men and boys claiming to be raped, the Criminal Code Act does not take cognizance of this fact.
According to Section 30 of the criminal code act, a male person under the age of 12 years is presumed to be incapable of having carnal knowledge. This is an irrefutable presumption which means that he cannot be guilty of the offence of rape or attempted rape”, even if it is shown that he has reached puberty despite his age. He may however be convicted of indecent assault. Since it is required that there must be genital penetration which a woman is incapable of doing, a woman would not be physically capable of committing the offence, but may be guilty of counselling or abetting rape. Interestingly, although a woman may not be physically capable of committing rape against a man or another woman, she may however be charged and found guilty of the offence of rape.
This implication is deduced under Section 7 of the Criminal Code act. which defines who a principal offender is. It provides that: “When an offense is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of committing the offence and may be charged with actually committing it,
a) Every person who actually does the act or makes the provision which constitutes the offence;
b) Every person who does or omits to do an act for the purpose of enabling or aiding another person
to commit the offence:
c)Every person who aids another person committing the offence
d) Every person who counsels or procures any other person to commit the offence.
Thus, whether one considers a woman in such a situation as either a principal in the first or second degree or accessory before the fact, if her act is caught under any of the provisions in Section 7, she would be considered as a principal offender of the crime of rape.
The legal principal that a woman gives an irrevocable consent to sexual enjoyment on marriage to her husband still exists. Since Section 6 of the criminal code act also defines unlawful carnal knowledge as “carnal connection which takes place otherwise than between a husband and a wife”, this implies that a husband cannot be guilty of raping the wife. This exception is an old fashioned one and is generally attributed to the fact that wives were viewed (and still are) as the husband’s chattel, having been bought by them. The woman is taken to have given her irrevocable consent to sexual enjoyment on marrying him. The law should however take cognizance of the fact that this should not mean that a woman has impliedly consented to accede to her husband’s unreasonable and inordinate demands for sex. However, where a husband uses force or violence against her to exercise his right, he may be guilty of assault. The legal principle that a man cannot rape his wife, would not apply in two situations. These are where the marriage has been dissolved or if a competent court has made a separation order which contains a clause that the wife is no longer bound to cohabit with her husband.
Section 282 of the Penal Code provides that
“A man is said to commit rape who has sexual intercourse with a woman in any of 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”. Although a woman cannot commit the offence of rape under the Penal Code Act, she may however be charged by the prosecution with abetting rape under section 83 of the code. Mere penetration under the penal code is sufficient to constitute the sexual intercourse necessary to the offence of rape. Cases under the penal code show the importance the court attach in providing evidence of penetration to a charge of rape. However, the definition under the definition of rape under the Penal Code is narrower than that under the Criminal Code in the sense that where the latter uses the term “carnal knowledge” implying that penetration of the vagina could be done by penetration of foreign object, the term “sexual intercourse under the penal code implies that only a penis can penetrate a vagina. The Penal Code does not describe what consent is but describes what consent is not. Consent is not when a woman agrees to have sexual intercourse with the rapist when it is obvious that she was put in fear, when the woman consents without the woman thinking she is agreeing to her husband. Even then, it goes without saying that absence of consent from the victim is an essential ingredient to a charge of rape. The consent must not be obtained by force, fraud or misrepresentation..
It is obvious to us that in our contemporary dynamic society, this law still remains ancient and static. In our society today, the men get raped by the women too. They are also entitled to section 34 of the Constitution of the Federal Republic of Nigeria 1999(as Amended) Section 42 of the Constitution also provides,. “all human beings are born free and equal in dignity and rights”
So, why then do we discriminate, or make it gender biased crime?
The possibility of a female sexually assaulting a male seems remote but it is not rare and is, in fact, not a recent phenomenon. For as back as 1978, it was reported that a certain lady named Joyce McKinney in the case of the popular “Mormon Sex in Chains” scandal was convicted for chaining a man and forcing him to have sexual intercourse with her.
The assumption that only females can be raped is due to a number of wrong or stereotypical reasons such as; Men always want sex or; Boys and men cannot be victims because they are easily physically aroused. We must understand that the male erectile response is involuntary which is very similar to a female response; we agree that a female while being sexually assaulted may still experience involuntary arousal which is a mechanical stimulation. This position is also applicable to men or boys. There are instances where a man can be scared, intimidated or blackmailed into engaging in sexual relations with a woman outside his wishes. Therefore, it is apt to say that men in Nigeria have been, over the decades, subjected to, social, political and legal double standards in this respect. Going further ,it would be worthy to note the cases of Mary Kay Letourneau and Debra Lafave where teachers sexually abused underage boys who were supposed to be under their care. Recently, in Nigeria, there was a viral video circulating depicting a girl sexually assaulting a younger male.
This female to male rape is otherwise called ‘made to penetrate” cases, it is, therefore, in my submission that a more inclusive definition of rape be pronounced, this is to include or reflect genuine concerns that a man or a boy can be victims of rape, the punishment in this respect should rank pari passu with that of a male sexual offender, and that’s where the law has to be amended.
The law too does not prescribe for marital rape. In an evolving society where independence and will power of individuals is important, the law has to evolve. A spouse’s right to sexual intercourse must be reasonably exercised, and with due regard for the health and the disposition (mood) of the other spouse. While a duty exists to have sexual relations, a spouse is not obliged to summit to excessive sexual demands of the other party which may for instance, be detrimental to the party’s health. The law does not recognize this, which poses a lacuna.
The lack of laws criminalizing marital rape means the victims have no recourse and are therefore trapped in a horrible situation. It also emboldens those who are inclined to commit such crimes because they have no fear of legal retribution. Marital rape has been recognised by the United Nations as a form of violence against women, but the absence of marital rape laws in Nigeria hampers the global struggle against violence against women. The society is evolving and moving; the laws ought to evolve too.
The act of marital rape must be criminalized and to do this adequate legislation should be passed, the Criminal and Penal Codes of the states as well as other laws dealing with sexual assault and rape amended to include marital rape specifically as a crime. The process of criminalizing marital rape must pass some benchmarks for its application to be optimal and equitable. First of all, marital rape must be unequivocally prohibited, that is to mean there must be no exceptions to marital rape. Since the most important ingredient of rape is the lack of consent, any sexual intercourse without consent by one of the spouses must render the other spouse liable so long as depriving the victim of consent was done intentionally.
It should not matter the gender of the victim so long as harm is done, the law must provide an avenue for justice. Therefore, the definition of rape will have to be amended to be closer to the definition provided in the VAPP Act that makes rape a crime capable of being committed by and against both men and women. It must be possible for male victims to get justice where they are forced to engage in sexual intercourse by their spouse.
In conclusion, rape is a horrible crime that inflicts a great deal of physical, emotional and psychological harm on the victims and must be fought against in all its dimensions including marital rape. A marriage certificate should not be a license to rape someone without legal consequence because the effect is still the same whether by a spouse, family member or complete stranger. Also, rape should not be gender biased. The men too are humans with dignity that should be protected. With the laws provided in the criminal code and the penal code, which are not enough to cover the various aspect of rape, the goals of these laws can only be achieved partially. If laws are enacted to partially provide for a crime in the society, of what use is that law to the society. There is need to update our laws to reflect the basic needs of the society and look at the laws of developed countries like England and America, and learn from these countries who have over the years found a way to provide for the different aspects to rape which they didn’t foresee. There is a need for immediate amendment of the the Criminal and Penal Code. It is strongly recommended that the various provisions of the relevant laws on rape are to be urgently reviewed by the National Assembly, particularly in terms of investigations and prosecution. The definition and provisions of rape should be made broader under our laws and attention should be paid to the circumstances surrounding rape in the country. Each state in Nigeria should have their own laws regarding rape and other offenses, and they must be implemented without prejudice. We evolve, the society evolves, the laws should evolve, else it becomes archaic supporting crimes in the society, and turn breed lawlessness in the society.
1.Rape Under Nigeria, available at www.myjobmag.vom(accessed on 3/6/2020)
2.Sexual Assault Criminal Law,Rape Shield, Evidence,.. available at www.sexassualt.co/criminal process.html(accessed on 2/6/2020)
3.Section 24 and 42 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended)
4.Section 357and 358 of the Criminal Code Cap C38 Laws of Federation,2004.
5.Section 282 of the Penal Code
ABOUT THE AUTHOR
Igbokwe Chinenye is a 400 Level law student of Abia State University, Umuahia Campus,Abia State. A legal researcher and author.
For knowledge and Justice