A Jurisprudential Cocktail On R*pe And Spousal *ape: Vis-A-Vis Its Legal Implications In Nigeria

By Aluma, Chukwuebuka Harmony

Abstract

Sexual Abuse or rape has become a scourge in our contemporary era of human existence and calls for joint effort which should be channeled towards taming this cankerworm that has eaten deep into the fabrics of our society. Posterity as a guide has divulged of how women have consciously been perceived as weaker vessels and as such subjected to inhumane treatment and relegation to the background, which has birthed the pidgin aphorism “women place na for kitchen and bed room”. Women folks has for years been defined to be chattels capable of been acquired, used and disposed. Such stereotyped perception of ladies by men has brought to birth various forms of gender-based violence which includes rape, molestation, slander, inhuman degradation and other forms of sexual abuses.

The paper examines the issues of sexual assaults vis-à-vis rape and spousal rape, how in plethora of ways it restricts female mobility and freedom, legal implications of rape, ingredients to establish in the office of rape, corroboration of evidence in proving the offence of rape, nature of evidence offered as corroboration, who can commit rape, issue of consent in the offence of rape, theories on spousal rape, stigma and impact of rape on the victims and finally a criticism on Kaduna State Penal Code (Amendment) Law 2020.

We shall also cite relevant cases as to better enlighten us on the position of the relevant laws on different issues as revolves around the offence of rape and spousal rape.

Introduction

Rape is a heinous kind of sexual assault and is punishable with imprisonment for life with  or without whipping. Chiazor I.A, Ozoya  M.I Umume, Egharevba M.E. went ahead to state that “rape like other forms of violence against women, is an infringement on women’s right, privacy, self preservation and dignity”. Rape generally is gender discriminatory as it can only be committed by a male upon a female. Early protective enactment on rape was made with the aim of protecting the sanctity of marriage which is built on fidelity and also the protections of father’s interest in the virginity of his daughters, as the court held in People v Liberto[1] that the purpose of early laws was to protect the chastity of women and thus their property value of their fathers and husbands. But there has been a paradigm shift in focus today of which attention has been directed towards protection of the female gender from sexual harassment and abuse[2]. Rape is a type of sexual assault usually involving sexual intercourse or other forms of penetration carried out against a person without that persons consent.[3]

Spousal rape presupposes a situation where a husband engages in sexual intercourse with his wife to whom he is legally married to, without her consent[4]. Spousal rape otherwise called marital rape is a widespread problem that has existed for centuries throughout the world. Despite this universal knowledge of it, it has been overlooked in the rape and domestic literature, as it is invalidated by most municipal statutes and cultural views of most societies. However, contemporarily, there has been a growing clamour that exemption of spousal rape from the list of sexual offences is unjust and has no place in a civilized dispensation. Despite the outcries of several women around the globe on how there husband has been engaging them in sex without their prior consent, the Nigerians legislation has seemed to be silent and blind towards such yearnings, although some legal theorists has risen up to proffer theories that will better aid in the understanding of the plight of women as it relates to marital rape.

What is Rape?

According to Black Law Dictionary, rape is an unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will.[5] It is also an unlawful sexual activity with a person without her consent and usually by force or threat of injury.

In the case of Captain Jackson Friday Olali v. Nigerian Army[6], the court of Appeal defined rape as an unlawful sexual intercourse with a female without her consent. The learned Justice went ahead to define rape also to mean an unlawful carnal knowledge of a woman by a man forcibly and against her will. The court of Appeal also in the case of Anayo Anyigor v. The State[7], defined rape as the act of sexual intercourse committed by a man with a woman who is not his wife without her consent.

In legal parlance, rape means an 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 threat or intimidation of any kind or by fear or 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 impersonating her husband[8].

In Nigeria, the offence of rape is contained in Section 357 and 282 of the Criminal and Penal Code 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 forcer by means of threat or intimidation of any kind or by fear or 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 impersonating her husband, is guilty of rape”.

Section 282 of the Penal Code defines rape as:

“When a man has sexual intercourse with a woman against her will, without her consent, or when her consent has been obtained by putting her in fear of death or of hurt”. It is rape to have sexual intercourse with a girl under the age of fourteen (14) or of unsound mind with or without her consent.

Section 1(1)a of the Violence Against Person (Prohibition) Act, 2015 defines rape as:

“when a person intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else without consent, or with incorrectly obtained consent where such consent was obtained by force/threats/intimidation, false and fraudulent representation as to the nature of the act, use of substance capable of taking away the will of that person, or impersonating a married woman’s husband in order to have sex with her”.

Section 31 of Child Rights Act (CRA) provides that sex with a child is rape, and anyone who has sexual intercourse with a child has committed the offence of rape whether or not the sexual intercourse  was with the consent of the child.

Ingredients of the Offence of Rape

The most essential ingredient of rape is penetration of the prosecutrix vagina however slight[9]. The slightest penetration will be sufficient to constitute the act of sexual intercourse[10]. Rape is complete as soon as the male organ touches the folds of skin over the female vagina or organ[11], therefore, the slightest touch of the female labio minora by the penis is sufficient.

The court in the case of Ezigbo v State[12], held that in a charge for committing the offence of rape, the prosecutrix must adduce cogent evidence establishing the following:

1. That the accused had sexual intercourse with the prosecutrix
2. 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
3. That the prosecutrix was not the wife of the accused
4. That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent.
5. That there was penetration.

It is worthy of note that, emission of the rupture of the hymen is unnecessary to establish the offence of rape. It has however been held, that any, even the slightest penetration, will be sufficient to constitute the act of sexual intercourse.  This is why, even where penetration was proved, but not of such a depth as to injure the hymen, it has been held to be sufficient to constitute the crime[13].  Also in Iko v State[14], it was held that penetration, with or without emission, is sufficient even where the hymen is not ruptured.

Therefore, in the case of Isa v Kano State[15], per Clara  Bata Ogunbiyi, JSC, held that 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. Thus, where penetration is proved but not such depth as to injure the hymen, it will be sufficient to constitute the crime of Rape.

What is Hymen and what can cause its Break?

Hymen is a piece of skin that partly covers the opening of the vagina in a woman who have never had sex and breaks when such a girl or woman has sex for the first time. The hymen can also be seen to be a thin piece of mucosal tissue that surrounds or partially covers the external vaginal opening[16]. It forms part of the vulva, or external genitalia, and is similar in structure to the vagina.

However, where penetration cannot be proved, the accused may be convicted of attempted rape as was decided in the case of R. v. Pigg[17]. Also, in R v. Effiong[18], the accused after he had entered a lady’s room without invitation, removed his cloths, grabbed her and evinced intent to have sexual intercourse with her. The learned justice held that the fact not to be sufficient to constitute rape since they only showed that the accused wanted to have and had made preparation to have sexual intercourse with the prosecutrix.

How to Prove the Offence of Rape

To legally establish the offence of rape, the prosecutrix must prove beyond reasonable doubt. The prosecutrix must not only prove that the accused had sexual penetration of her but it was done without her consent. The incident must be reported to the relevant authority and necessary medical analysis conducted. The proof required to establish the offence of rape is not based on the solitary evidence of the prosecutrix, there must be an independent and credible corroborative evidence. The nature and content of the corroborative evidence must not only corroborate the prosecutrix claim that the accused had raped her by penetrating into her vagina; it must also unequivocally implicate the accused[19].

In the case of Iko v. State supra, the court of Appeal held that the appeal could not stand because the prosecution failed to prove the ingredients of rape. Also, it is right to note that where the evidence of a doctor who examined a victim of rape is contradictory in material particulars, conviction cannot be sustained[20]. Therefore, calling a pathologist to give medical evidence as regards to proving penetration in an offence of rape cannot be sustained, hence the need for a Medical Gynecologist.

The Supreme Court in the case of Rabiu v. State [21], restated the age-long principle of law that, the prosecution is required to lead credible evidence to prove that the ingredients of rape are proved to the satisfaction of the court, in order to secure a conviction for the charge of rape. However, proof beyond reasonable doubt, is not proof beyond all doubt or all shadow of doubt, it simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability[22].

In Akpanefe v. The State[23], the appellant had sexual intercourse with an 11 year old girl. After the first incident, on the 2^nd occasion, the appellant also made carnal knowledge of her. After the 2^nd incident the little girl was crying and the appellant gave her one shilling to stop crying. The girl hid the one shilling in her pant and went home weeping. The mother upon observation interrogated her on what prompted the tears. The mother removed her pant and discovered the on shilling, on learning of what happened, the mother reported to the police. Medical examination was conducted and it was medically confirmed that someone had intercourse with the little girl which led to the rupture of her hymen. The High Court convicted the accused on the basis of the medical report and that the one shilling found in her pant corroborated the story. The Supreme Court quashed he conviction and set the accused free because those were mere circumstantial evidence which were not weighty enough to convict the appellant.

What is Corroboration of evidence?

Corroboration means confirmation, ratification, verification or validation of existing evidence coming from independent witness or witnesses[24]. Also in the case of Captain Jackson Olali v. The Nigerian Army, the court defined corroborative evidence as evidence which confirms the evidence of the prosecutrix in a case of rape. Corroborative evidence is no more than evidence tending to confirm, support, or strengthen other evidence sought to be corroborated.

Evidence in corroboration must be an independent testimony, direct or circumstantial which confirms in some material particular not only that an offence have been committed, but that the accused person has committed it. In the case of Iko v. The State supra, it was held that corroboration entails the act of supporting or strengthening a statement of a witness by fresh evidence of another witness. The evidence of the witnesses need not be exact in words.

It is not a rule of law, that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix, as what is required is just a piece of evidence which shows the story of the prosecutrix that the appellant committed the crime, is true[25].

Nature of Evidence Offered as Corroboration for an Offence of Rape

Evidence offered as corroboration for the offence of rape as held in the case of Upahar v The State[26], must be:

1. Cogent, compelling and unequivocal as to show without more that the accused committed the offence charged
2. An independent evidence which connects the accused with the offence charged, and
3. Evidence that implicates the accused in the commission of the offence charged.

Note that where the evidence adduced by the prosecution to prove the commission of the offence of rape is contradictory and confusing with the possibility of two conclusion, one in favour of the accused person and the other against him, the trial court is to prefer the conclusion favourable to the accused person in that he is deemed innocent until the offence as charged has been proved by credible and cogent evidence beyond reasonable doubt[27].

Although corroboration is desirable, it has been settled in the case of Reekie v The Queen[28], that whether particular evidence can be corroborated is for the trial judge to decide. It is true that there is nothing in law to prevent the court from convicting on the corroborated evidence of the complainant, but it is an established rule that the presiding judge must direct himself and the assessors in such case on the desirability of there being corroboration of the prosecutrix evidence. Hence the court cannot convict an accused on a charge of rape without corroboration, and in this regard an early report of the commission of the offence is not tantamount to corroboration. In Sambo v The State[29], the court held in 1993 that it is the law that before the prosecution can secure conviction for the offence of rape, the evidence of the prosecutrix must be corroborated in some material particular that sexual intercourse did take place and that it was without her consent. Therefore, corroboration is not a rule but it is yet not safe to convict with uncorroborated evidence.

Who can commit the offence of Rape?

According to Section 30 of the Criminal Code a male person under the age of 12 years is presumed to be incapable of having carnal knowledge, hence declared Doli Incapax (incapable of having carnal knowledge). Therefore, such child cannot be guilty of the offence of rape or attempted rape.

In the same vein, a husband is incapable of raping his wife, but this can be rebutted by showing that such marriage has been dissolved, or a competent court has made a separation order containing a clause that the wife be no longer found to cohabit with her husband thereby the implied consent of consummation giving by the wife in the instance of marriage has been revoked, and while such court order is still subsisting, it will be rape if the husband has unconsented carnal knowledge of her. Although a husband may not be guilty of rape against his wife, but if he uses force to exercise such right of consummation, he may be guilty of assault or wounding[30].

Also, a woman cannot be guilt of committing the offence of rape against a man because according to section 357 of the Criminal Code the offence can only be completed upon a woman or girl. And also a woman lacks the veritable organ to cause penetration. However, the world is moving away from this perception as the offence of rape cuts across every gender. Nigeria has followed suit with its enactment of the VAPP Act, which provides that anybody regardless of the gender, is capable of committing the offence of rape, and therefore seeks to protect every gender.

Issue of Consent in the Offence of Rape

Section 264, Criminal Laws of Lagos State defines consent as when a person agrees by choice and has the freedom and capacity to make and communicate that choice. Consent presuppose to agree or to permit someone to do something[31]. In sum, consent entails voluntary yield to what another proposes or desires; agreement, approval, or permission regarding some act or purposes, especially voluntarily by a legally competent person[32].

Therefore in the case of rape, consent is the permission, freedom, approval, agreement and capacity to make choice on whether to have sexual intercourse or not. Note that it is possible for a woman who consents to sexual intercourse at the start to disapprove of it in the course of the intercourse.

On the charge of rape, absence of consent is very imperative and the onus lays on the prosecution to expend evidence as to prove that the accused had an unlawful carnal knowledge of the prosecutrix, without her consent. An 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 threat or intimidation of any kind or by fear of harm, amounts to rape. To have carnal knowledge of a sleeping woman is rape and submission by a person of weak intellect also constitutes rape.  In the case of DPP v Morgan [33], it was held that if an accused person believes that the woman was consent, he should not be guilty of rape even though he had no reasonable ground for his belief, hence the onus lays on the prosecution to adduce evidence that consent was never given.

By the provisions of the PC, CC, CLL, consent is incorrectly obtained where it is gained by putting the woman in fear of death or hurt, or by impersonating a married woman’s husband in order to have sex, or by force, threat or intimidation.

Women’s Contribution to the Offence of Rape

In the face of law, sexual intercourse without prior consent is odious and classified as rape. Therefore defense of indecent exposure or prior consent to kiss and fondle does not exonerate the accused but can only make the prosecutrix liable to conviction[34].  Although section 26(1) &(2) of the VAPP Act, 2015 provides for the offence of indecent exposure as regards to when :

• “A person exposes his or her genital organs, or a substantial part thereof, with the intention of causing distress to the other party, or to another person seeing it may be tempted or induced to commit rape”.
• “A person who intentional exposes his or her genital organ, or substantial part thereof, and induces another to either massage, or touch with the intention of deriving sexual pleasure from such act commits an offence of indecent exposure”.

But yet, indecent exposure is not a defense for rape neither is it a license to rape, as both offences are treated on its own merits and against the offenders. Therefore, that she was in a romantic relationship with the accused, or that she dressed provocatively, are inconsequential as to constitute a defense to the criminal liability of the offence of rape.

Spousal Rape

Spousal rape otherwise known as marital rape is the non-consensual sexual intercourse between a husband and his wife. Traditionally rape could only be committed outside marriage, for upon marriage it is believed that a woman has impliedly consented to all future sexual activity with her husband through such matrimonial contract, hence it is not prosecutable. According to Nwogugu[35], the parties to a marriage owe each other a duty of consummation, which forms one of the grounds for dissolution of marriage as contained in Section 15(1) Matrimonial Causes Act.

The important issue here is whether the Nigerian Criminal Jurisprudence recognizes spousal rape? The resolution of this issue is in the negative. This is because the combined effect of section 6 and 357 of the Criminal Code is to the effect that a man cannot rape his wife. Statutorily therefore, the carnal connection that takes place between husband and wife is lawful, and therefore cannot satisfy the elements of “unlawful carnal knowledge” that must be proved in other to establish rape[36].

Spousal rape exemption owes it etymology to the eighteenth and nineteenth centuries conception of marriage were William Blackstone whose treaties on the laws of England was extremely influential through the United States of America and the Commonwealth, stated thus:

“ By marriage, the husband and wife are on person in law: that is, the very being or legal existence of the woman is suspended during marriage, or at lease is incorporated and consolidated into that of the husband: 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 the acquire by marriage.[37]

This entails the principle of coverture, where the married husband and wife are subsumed to become one. The married woman’s civil identity is now under the husband’s control. Also, the Laws of nature and divine revelation designed the husband as the head of the family[38]. According to Fus, spousal rape is justified under three separate theories[39], which includes:

• Implied Consent Theory
• Unity of Persons Theory
• Property Theory

Implied Consent Theory

This is the most common of all the theories championing the impossibility of spousal rape and is structured around contract law. It was championed by Sir Matthew Hale in the Seventeenth Century who opined that: “The husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot be retracted”. He believed matrimonial consent is irrevocable and can only be revoked by lawful separation.

Unity of Persons Theory

This legal theorist on the hand disapproves the separateness of the wife from her husband. Their inkling stems from the belief that when two people marry, they are fused and as such becomes one inseparable being. The being of the woman is intertwined into that of the man who subsumes her and as such the woman is effectively suspended during marriage. In the view of these scholars, spousal rape is thus impossible because a husband is not capable of raping himself.

Property Theory

The gist of the property theorists is that by marriage a woman becomes the property or chattel of her husband, which he acquired for a price and such title so gotten gives him the right to consummate his wife with or without her consent, owing to the fact that upon the initiation into matrimony, all the necessary consent both present and in futro has been impliedly given. The goal of this theory is to inspire and perpetuate marital harmony. On this premise, sexual intercourse can never be rape because the husband is merely making appropriate use of his property. This theory is hereby supported by the wake of the case of Onwuchekwa v. Onwuchekwa[40], where women were referred to as properties of men.

It is believed that because a woman had previously consented to sexual intimacy and intercourse, she is likely to do so in the future, and so further forced intercourse is not seen to be rape. In State v. Moipolao[41], which was a case involving a pregnant woman and her long-term boyfriend, the judge reduced the accused person’s sentence from ten years to five years because according to him, the rape was not as serious as if a stranger had committed it. The court opined thus: “… this rape should therefore be treated differently from the rape of one stranger by another between whom consensual intercourse was almost unthinkable. Also in the case of S v. Modise[42], where divorce proceeding was pending between the appellant and complainant, the husband who attempted to rape his wife was convicted and duly sentenced but not without some sentimental undertone.

The Position of Nigerian Jurisprudence on Spousal Rape

None of the legislations as enacted in Nigeria has enshrined in it an offence called spousal or marital rape. Nigeria justice system is still silent on the offence of non-consensual sexual intercourse by husband against his wife as rape. As of today, spousal rape is not an offence in Nigeria and therefore cannot be a cause of action in courts. The municipal laws criminalizing rape in Nigeria specifically provide that sexual intercourse between a husband and wife is not unlawful. Section 258(3) of the CLL provides that sexual intercourse by a man and his legally married wife is not rape. Also section 282(2) of the Penal code provides that sexual intercourse between man and wife is not rape, if she has attained the age of puberty.

Surprisingly, the Criminal Law of Lagos State follows the pace of the Common law principle on the offence of rape by providing that a man cannot commit rape on his wife. This was expressly declared in section 258(3) of the law which provides thus: “sexual intercourse between man and a woman who are married is not unlawful”.

Punishment for the Offence of Rape

Once the prosecution has funded  the court with enough evidence which is carefully corroborated as to prove that the accused had an unlawful carnal knowledge of the prosecutrix without her consent, or with her consent if the consent was obtained by fraud, deceit or fear or imminent danger, the court will go ahead to make its ruling in favour of the prosecution and against the accused.

Section 2 of the Violence against Person (Prohibition) Act, 2015, provides that “A person convicted of an offence of rape is liable to imprisonment for life, with a minimum punishment of 14 years and where there is a group rape, the offenders are jointly liable to a minimum of 20 years imprisonment. Also name of such sexual offender(s) are to be kept in a register and made public. In sum, victims of rape shall be awarded appropriate compensation as the court may deem fit.

Presently, Kaduna state government has made a law to amend the Penal Code Law No. 5 2017, as provided for in Section 258[43], which provides the following punishment for the offence of rape:

“258 (1)   whoever commits rape of a child below the age of 14 years shall on conviction, be punished with surgical castration and death

(2) Whoever has sexual intercourse with a male child below the age of 14 years shall be punished with surgical castration and death”.

(3) Where a female adult is convicted for the offence of rape of a child, the court shall punish the accused with Bilateral Salpingectomy of death.

(4)  Where the victim is above 14 years, the court shall on conviction sentence the accused with punishment of surgical castration and life imprisonment.

Note:  Section 3 of the Amended Penal Code of Kaduna State, defines Bilateral Salpingectomy as removal of fallopian tubes, while it defined castration as removal of the testicles of the male person.

Section 358 of the Criminal Code provides imprisonment for life, with or without canning as punishment for rape. Punishment for rape under section 283 of the Penal code includes imprisonment for life or for any less term and or a fine.

Argument against Kaduna State Penal Code (Amendment) Law 2020, on Castration of Rape Offenders

On the issue of Surgical Castration and Bilateral Salpingectomy as a means of deterring sexual offenders from forging ahead with their sociopathic rampage; subjecting them to such punishment would not have a direct impact on their sex drive. As provided for in section 1 (2) of the VAPP Act, 2015, penetration can be done with any other part of his or her body apart from the penis, or any other object. Castrating them without putting an end to their sex drives is a sure waste of state resources, and as such rape acts can still be accomplished using other parts of the body or objects. According to a urologist, Dr. Nabasu Nisa[44], after salpingectomy, a woman’s sex drive won’t be affected.

Such legislation is wrong as it will also deprive the wives of such castrated offenders their right of consummation and in cases were such castrated persons are found innocent at the end of the castration, restitution will never be impossible as such persons will be made to live the rest of their lives in agony and perpetual misery. Such legislation is legislative sadism and should not be applicable in a contemporary epoch in time as this. It is barbaric and would only paint the country as ‘uncivilized’ before the international community.

According to Nkechi Obiagbaoso- Udugbunam, a Human right Lawyer and founder of Initiative for Women and Girls Right Advancement (IWOGRA), section 4 of the Kaduna State Penal Code (Amendment) Law 2020 is a violation of the constitution, which in section 34 provides that every individual is entitled to respect for the dignity of his person and no person shall be subjected to torture or to inhuman or degrading treatment and it is also a violation of reproductive health as enshrined in International Human Rights Laws that Nigeria has signed and ratified. She added: “Another International Human Rights concern is that it constitutes cruel, inhuman or degrading treatment, which is prohibited by Article 7 of the International Covenant on Civil and Political Rights, signed and ratified by Nigeria”. Therefore, surgical castration and Bilateral Salpingectomy, as punishment for rape cannot be justified under the Nigerian constitution and International Human Rights Law[45].

The punishment appears inhuman, barbaric and repugnant to natural justice, equity and good conscience. Another lawyer, Johnson O. Esezoobo, said castration is too extreme a deterrent, saying: “admittedly, rape is too serious a crime, but if our experience with tying persons to the stakes and shooting them for armed robbery is anything to go by, castration will not solve the problem. Rather, it will make culprits more vicious, cruel and callous”.

In the same vein, an Ebonyi based lawyer, S. E Nwankpa, opinionated that the punishment is too harsh for the crime. Although curtailing the crime of rape is very sacrosanct but the punishment is uncivilized, inappropriate, repugnant, inhuman and disproportionate to the crime.

In sum, castration of offenders is too big a price to pay, as it presupposes killing a chicken with a rocket propelled grenade (RPG). It hampers the convicts reproductive right, which militates against right to life, which includes being able to do all the things associated with living. Hence the law is archaic and clashing with modern realities.

Conclusion

Rape is fast becoming a norm in Nigeria, which needs to be cut from its root. In the words of Prof. Yemi Osibanjo: “Gender based violence, rape and sexual assault have no place in our society. It is an unacceptable behaviour and a blemish on our collective humanity and dignity as a people ad as a nation”. Despite this outcry over this menace of rape in Nigeria, there seems to be no end to this nemesis. Young ladies are constantly assaulted, leaving them with stigmas that last throughout their lifetime. Rape in its entirety is unnatural, unethical, irrational and a violation of the victims fundamental human right to dignity of human person.

From January 2020 and May 2020, Nigerian Police has recorded 717 rape cases[46], and more numbers are been recorded every day. Rape should be shunned and vehemently criticized. Raping of married women is at most a bizarre, as marriage is a legal union between a man and a woman to the exclusion of every other person.

On the issue of spousal rape, although sound argument has been given in light of its exemption, but better legislations should be made to protect women who are in matrimonial union, as most of them are been visited with different inhuman treatment by their various husbands in the name of consummation of marriage. Most of them are molested, intimidated and reduced to a chattel of ridicule, and in turn such husband’s hides under the ambit of spousal implied consent of consummation. Married women should not just be protected by Nigerian legislation but seen to be protected, legislations should be made to deter men from being sexually violent against their spouses, as it breaches their fundamental right to dignity of human person. Even though marital rape is fast becoming a crime in a lot of countries, it is not yet the law in Nigeria and some African countries. Even in those countries where spousal rape is criminalized; such matters are not taken serious by the relevant authorities. Hence our legislators should rise up to the fast changing society and proffer solutions to decipher this bane and lacuna in law.

In conglomeration, in Nigeria it is a bitter truth that rape is a crime while spousal rape is not seen as one. A man cannot be guilty of the crime of rape against his wife, as the Criminal and Penal codes are silent on such matter, and the only way spousal rape can be criminalized  in Nigeria, is to amend the Penal and Criminal Codes. And I strongly recommend that such should be considered and given its due attention, so as to show sense of understanding and pity to the manhandled wives.

[1] 64 N.Y.2d 152

[2] Yakubu j. A: The Rape Crises- Society on Trial. The Advocate – international Journal of Law students’ society, Obafemi Awolowo University, Ile-Ife, 1990, 14 and 15 pp 34-37

[3] Francis Ewherido, “Can a man rape”, Vanguard, Saturday, January 18, 2020.

[4] Ochem Charles Emeka and C.T. Emejuru “An Appraisal of the Jurisprudence of Spousal Rape in Nigeria” in Donnish Journals of Law, volume 1(1), March, 2015

[5] 10^th edition

[6] (2016) 4NWLR pt 1502 @ pg 358

[7] (2019) 14 NWLR pt1691 pg 45

[8] Posu v. State (2011) 2 NWLR pt1234 @ pg 393

[9] Ezigbo v State (2012) ALL FWLR [pt 638] pg 847

[10] Section 6, Criminal Code Act, 1990

[11] Joel Samaha, Criminal Law, West Publishing Company 1996, 358.

[12] supra

[13] R. v. Alien 9 C & P.31

[14] (200) LPELR- SC.177/2001

[15] (SC.35/2013) [2016] NGSC 62 (29 January 2016)

[16] Wikipedia.org

[17] (1982) 1 WLR 762 (Criminal Division)

[18] (1936) 3 WACA 83

[19] Captain Jackson Olali v. Nigeira Army supra

[20] Somemimo v. State (2004) 11 NWLR [pt 885] pg 5151

[21] (2015) 7NWLR [PT 825] 491 @ 508

[22] Smart v. The State (2016) LPELR- 40827 (SC)

[23] (1969) 1 ALL NLR 420

[24] Igbine v The State 9 NWLR [pt 519] 101 @ 108 CA

[25] Ogunbayo v. The State 92007) 10 QCCR 32

[26] (2003) 6NWLR [PT816] 250

[27] State v. Danjuma (1997) 5 NWLR [PART 506] @512

[28] (1954) 14 WACA 501 @502

[29] (1993) 6NWLR [Pt 300] 399

[30] R v. Miller supra

[31] Ganiyu Ogundipe v. Sampson Muriana Oduwaiye & Anor (2013) LPELR-20474(CA)

[32] Black’s Law Dictionary, 10^th Edition @page 368

[33] (1975) @ ALL E.R 347

[34] Section 26(3) of Violence Against Person (Prohibition Act), 2015

[35] Family Law in Nigeria

[36] Dr Emmanuel O. C Obidimma and Dr Angela E Obidimma “Spousal Rape in Nigeria: An Aberration”, in International Journal and Asian Studies , Volume 13, 2015. n.p

[37] W Blackstone publishers Ltd, (2008) 153

[38] J Schouler, A Treaties on the Law of Domestic Relations 16-21 (Boston:little, Brown, & Co. 1870), 16-21

[39] C. T. Emejuru, the Socio-Legal Dilenma of Rape Victims, Ikeja Bar Review, vol.3, pt.2 (2010)m60-68

[40] (1991) 5NWLR [PT. 194] 739

[41] (2004) ZANWHC, 19

[42] (2007) ZA NWHC, 73

[43] Kaduna State Penal Code (Amendment) Law 2020

[44]Adebayo Folorunsho Francis “Kaduna: Castrating female rapists wont suppress sex drive or stop child birth”, Punchng, September, 27, 2020.

[45] Tobi Awodipe, Ijeoma Thomas-Odia et al, “Rape: Crossfire over castration law”, https://m.guardian.ng/news/rape-crossfire-over-castration-law/

[46] Davud Mutua,  “ Nigeria Records 717 Rape cases in Five Months”, Premium Times, Monday, June 15, 2020 n.p

_______________________________________________________________________ Groundbreaking Guide For Lawyers: Adigwe Publishes ‘Artificial Intelligence For Lawyers’ With Free Research eBook The book also examines Nigeria's legal ecosystem, focusing on the LPELR and NBA AI Guidelines. As a bonus, every purchase comes with a FREE eBook titled: How to Use the AI Features in LegalPedia and LawPavilion. Ohio Books Ltd praises the publication, stating: "....this is the only Nigerian book I know of on the topic." How to Order: 📞 Call, Text, or WhatsApp: 08034917063 | 07055285878 📧 Email: benadigwe1@gmail.com 🌎 Website: www.benadigwe.com Ebook Version: Access it directly online at https://selar.com/prv626 Authored by Ben Ijeoma Adigwe Esq., ACIarb (UK), LL.M, Dip. in Artificial Intelligence, Director at the Delta State Ministry of Justice, Asaba, Nigeria. ______________________________________________________________________ [A MUST HAVE] Evidence Act Demystified With Recent And Contemporary Cases And Materials

Available now for NGN 40,000 at ASC Publications, 10, Boyle Street, Onikan, Lagos. Beside High Court, TBS. Email publications@ayindesanni.com or WhatsApp +2347056667384. Purchase Link: https://paystack.com/buy/evidence-act-complete-annotation ________________________________________________________________________ “Enhance Legal Practice With Authoritative Reports” — Alexander Payne Offers Comprehensive Law Reports, Spanning Over A Century Of Nigerian Jurisprudence

Interested buyers are encouraged to place their orders and enquiries via: 0704 444 4777, 0704 444 4999, 0818 199 9888 Website: www.alexandernigeria.com

_______________________________________________________________________