An Examination Of The Offence Of Attempted Rape In Nigerian Criminal Jurisprudence

By Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

INTRODUCTION

Criminal law plays an important role in any society, shaping the boundaries of permissible conduct and ensuring the maintenance of social order. Within this framework, offences of a sexual nature hold a particular significance due to their potential to infringe upon the autonomy, dignity, and well-being of individuals.

One such offense that encapsulates the gravity of such transgressions is attempted rape.[1] In the context of Nigerian criminal jurisprudence, attempted rape emerges as a complex legal issue that demands careful analysis and evaluation. Rape, recognized universally as a heinous crime, involves the non-consensual act of engaging in sexual intercourse with another person. Attempted rape, an equally condemnable offence, occurs when an individual undertakes deliberate actions with the intent to commit rape, yet is prevented from completing the act due to intervening factors.[2] As a distinct legal concept, attempted rape prompts a range of inquiries related to its definition, elements, evidentiary challenges, punishments, and its overall compatibility with the broader principles of justice and fairness within Nigerian law.

Nigeria, a nation with a rich legal heritage, has a criminal justice system that strives to address the evolving complexities of contemporary society. With its deeply ingrained cultural norms, socio-economic dynamics, and legal traditions, Nigeria’s approach to attempted rape necessitates a comprehensive examination.[3] This study delves into the legal provisions that govern attempted rape, critically assessing judicial decisions that have shaped its interpretation, and considering the impact of these interpretations on the pursuit of justice and the protection of victims’ rights.

The Concept of Attempted Rape      

Unequivocally, every reasonable human being agrees that either attempted rape or rape itself is a horrible crime that inflicts severe physical, traumatic, emotional and psychological harm on its victims.[4] Attempted rape is a criminal offence that is punishable with fourteen years imprisonment in Nigeria. This criminal offence is provided for in Section 359 of the Criminal Code Act in Nigeria, which states that;

“Any person who attempts to commit the offence of rape is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning.”[5]

Attempted rape refers to an unsuccessful or incomplete act of sexual assault with the intention of engaging in non-consensual sexual activity. Attempted rape involves actions that demonstrate a clear intention to commit the act of rape, but for some reason, the act is not completed. In Nigeria, the laws and regulations regarding sexual offences, including attempted rape, can vary depending on the jurisdiction and legal framework in place. Rape and attempted rape are generally considered serious crimes that can lead to severe penalties if convicted.[6]

In proving the offence of attempted rape, the prosecution must be able to prove that the accused intended to commit the offence which he is alleged to have attempted. Thus in R. V. Seidu,[7] the accused could not be guilty of attempting to commit rape because he did not intend sexual penetration. This is evident also in R. V. Offiong.[8]

PROOF OF RAPE BY THE PROSECUTION EXAMINED

Before any person can be convicted for an offence of attempted rape in any part of Nigeria, the victim of the attempted rape through a prosecution lawyer must prove the following;

1. That the alleged rapist fully intended to have sexual intercourse with the victim of rape (victim).
2. That the forceful act of sexual intercourse was done without the consent of the victim or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.[9]
3. That the victim was not the wife of the alleged rapist.
4. That the alleged rapist had the criminal intention to have sexual intercourse with the victim of the attempted rape without the victim’s consent or that the alleged rapist acted recklessly not caring whether the victim consented or not.
5. That there is a high likely hood of penetration of the penis of the alleged rapist into the vagina of the victim.[10]
6. The state of the law is that the most essential ingredient of the offence of attempted rape is the outward intention of penetration, however slight.[11] See the cases of Ndewenu Posu & Anor. v. The State (2011) LEPLR, SC 134/2010, Idi v. State (2017) LPELR-42587(SC), Lucky v. State (2016) LPELR-40541(SC).

It has been noted that the condition in paragraph “E” has been expanded to cover situations in which women may attempt to rape or rape men or in which a rape may involve the use of an object. The Violence Against Persons (Prohibition) Act, 2015, a federal law that applies in the Federal Capital Territory and States of the federation that adopted it, encompasses the penetration of any aperture in any part of his/her body, including the mouth and anal. Unlike before, the expanded rule now allows a man to accuse a woman of attempted rape or rape.

THE CHALLENGES FACED BY VICTIMS OF ATTEMPTED RAPE IN NIGERIA

Legal obstacles in proving attempted rape, societal prejudice, and financial limitations are just a few of the significant difficulties faced by attempted rape victims.

• LEGAL OBSTACLES

The fundamental rule of law that the court should not convict an accused person of any violation without corroborating evidence is the initial source of the legal burden placed on the shoulders of victims in Nigeria in proof of attempted rape cases. Particularly when a youngster is the victim of the crime, parties must substantiate their cases.[12]  Therefore, it is difficult for Victims of attempted rape to present evidence in court to support their claims.[13]

The low conviction rates for attempted rape are caused by victims’ reluctance to testify against their attackers.

• Societal Prejudice

The attitude of citizens toward rape victims is the biggest obstacle facing victims of rape in Nigeria. The story of a young girl visiting her male friend in her neighbourhood and him recruiting two of his friends to join him in raping the girl was told on a blog.[14] Her biggest challenge was determining how to speak up given society’s perspective on rape victims. Many survivors already do not trust the police because they have witnessed the culture of victim-blaming and seen allegations that are improperly investigated.

• Financial Limitations

The cost of bringing attempted rape cases to trial is typically high. This is because the accused may appeal all the way to the Supreme Court. Since this typically takes years, it is seen as capital demanding. The only alternative left for the victims is to let the state prosecute the case on their behalf, which may result in some shoddy attorneys conducting the case on the state’s behalf. The outcome is foreseeable; such cases are typically dismissed for lack of diligent prosecution.[15]

Recommendations

There have been so many developments in the 21st century which the criminal and penal codes have not recognized. In fact, these laws still operate with the common law requirements for the proof of the offence of attempted rape. These laws are archaic and do not provide solutions to fast increasing improvements and changes nowadays. The Violence against Person Prohibition Act2015 has however, taken care of most of these loopholes. Notwithstanding the provisions of the VAPP Act, it is hereby recommended that it is still important to amend the provisions of our Criminal Code and Penal Code on rape and attempted rape to reflect and tackle the problems of the 21st century being major statutes on crime in Nigeria. It is further recommended that the Violence Against Person Prohibition Act 2015 be amended to reflect the provisions on attempted rape. This amendment should not only apply to males but also to females alike. It is also recommended that states should adopt the provisions of the VAPP Act 2015. This is because the Act was made to apply only in Abuja.[16] It is pertinent to note at this juncture that Anambra State has already adopted the provisions of this Act.[17] It is further recommended that states adopt the provisions of the Child Right Act particularly, its provisions on rape and attempted. Also, judges are encouraged to brace up to their duty to give stern punishment when a defendant is found guilty of such a heinous crime. Government, NGOs, communities and well-to-do persons should take into consideration the building and development of witness protection centres and rehabilitation centres which will be readily available to persons of all cadres in the society.

Conclusion

The Nigerian Criminal Code and Penal Code were enacted in the 1900s borrowing old ideas. Their provisions on sexual offences have undergone very minor and insignificant changes or amendments. The VAPP Act went a very long way to cover most of the loopholes contained in the Criminal Code and Penal Code. However, it still contains one great loophole which is the fact that it does not recognize attempted rape. This enactment still encourages attempted rape. This view is archaic and does not conform to modern developments as in the laws of other developed countries like China, UK, United States of America etc. Notwithstanding the fact that the VAPP Act has gone a long way to cover the loopholes in the Criminal Code and Penal Code, they are still Nigerian statutes which are in use and should not contain such archaic definitions of attempted rape.

SNIPPET: In proving the offence of attempted rape, the prosecution must prove that the accused intended to commit the offence which he is alleged to have attempted.

KEYWORDS: rape, attempted rape, violence against persons prohibition act.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Litigation Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Obiora Ifediora

Obiora is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Litigation Practice.

He can be reached at obiora.ifediora@omaplex.com.ng

[1] Martin O’Bren and Majid Yar ‘Criminology, The Key Concepts’ https://www.sijufor.org/uploads/1/2/0/5/120589378/criminology._the_key_concepts.pdf accessed 18^th August, 2023.

[2] Ibid

[3] Ibid

[4] Adeniyi Israel ‘Attempted Rape: An Examination of the Current Position of Law in Nigeria’ https://www.thisdaylive.com/index.php/2021/09/07/marital-rape-an-examination-of-the-current-position-of-law-in-nigeria accessed 19 August, 2023.

[5] Criminal Code, Ibid, s.359.

[6] Solomon Vendaga Ater, ‘The Law on the Offence of Rape in Nigeria; Challenges and Recommendations’ https://www.researchgate.net/publication/366877434

[7] (1960) W.R.N.L.R. Pg38.

[8] (1936) 3 WACA 83.

[9] Section 357 & 358 of Criminal Code, 282 Penal Code

[10] Section 1, Violence Against Persons(Prohibition) Act

[11] Ogunbayo V. The State (2007) I NWLR PT. 1035 PG. 157

[12] Godwin Okeke, ‘An Examination of the offence of Rape and its Challenges’ https://journals.unizik.edu.ng/index.php/ulj/article/download/913/803/2335 accessed 18^th August, 2023.

[13] Ibid

[14] Linda Ikeji https://www.lindaikejisblog.com/ accessed 24^th August, 2023.

[15] Kehinde N Adegbite, ‘Rape Under the Nigerian Law’ https://www.academia.edu/19541974 accessed 19th August, 2023.

[16] Sections 47 & 27

[17] Violence Against Persons (Prohibition) Law of Anambra State 2017.