By Victor Sunday
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Introduction
It was from Sir Matthew Hale’s History of the Pleas of the Crown that it was pronounced that a wife’s matrimonial consent, once given, is irrevocable. This is a proposition that found its way into the common law and through it into section 6 of the Criminal Code Act, section 282 of the Penal Code, and section 258(3) of the Criminal Law of Lagos State. Each of these provisions excludes a husband from liability for what would otherwise be rape if committed against any other woman and the doctrine has not gone unchallenged elsewhere.
In England, the House of Lords finally abolished it in R v R [1991] UKHL 12, [1992] 1 AC 599, holding that a wife’s implied consent to intercourse could no longer be regarded as a feature of the marital status itself. Canada abolished the exemption by statute in 1983 and South Africa did the same in 1993. Nigeria has done neither and Lagos true to its peculiarity of moving ahead of the rest of the country has been in flow with the times.
The workaround lies in section 261 of the Criminal Law of Lagos State which creates the offence of sexual assault by penetration. Unlike section 260 which retains the marital carve-out inherited from the Criminal Code, section 261 contains no such exemption. It punishes with the same maximum sentence of life imprisonment that attaches to rape. Therefore, because the section does not distinguish between a husband and any other man, a wife who is forced into sex by her husband may, at least as a matter of statutory language, ground a prosecution for sexual assault by penetration even though she cannot ground one for rape.
Professor Bello’s recent inaugural lecture at the University of Lagos drew out precisely this implication observing that although a husband cannot technically be convicted of raping his wife, he may nonetheless be convicted under section 261 of an offence carrying an identical penalty, so that what the drafters of section 260 closed with one hand, the drafters of section 261 appear to have reopened with the other.
The Violence Against Persons (Prohibition) Act 2015 which Lagos has domesticated points in the same direction though in practice prosecutors in Lagos have tended to reach for the more familiar and more litigated provisions of the Criminal Law rather than for the newer federal statute.
2.0. The DPP’s Clarification
This doctrinal innovation went viral recently when the Lagos State Directorate of Public Prosecutions addressed the question directly and confirmed that a husband who forces sex on his wife can face life imprisonment under section 261. The Director of Public Prosecutions, Dr Babajide Martins, was careful to qualify the position. Liability, on his account, attaches where the couple is estranged or in disagreement and not where they are together and on good terms. With this, the DPP also addressed the popular belief that payment of a bride price entitles a husband to his wife’s body regardless of her wishes.
Now, that clarification made by the DPP can be read two ways. On the positive side, Lagos has created something that works like a marital rape offence. It applies no matter what the marriage looks like i.e, as long as the sex was non-consensual. On the negative side, by making prosecution depend on whether the couple was getting along, the DPP has brought back the same old idea Hale started with to the end that a wife’s consent depends on her marital status rather than on her own will in the moment.
Section 261 says nothing about whether the marriage is happy or strained. However, if prosecutors only act when the couple was on bad terms, the offence becomes narrower than it was written to be. It ends up treating estrangement as the thing that gives a wife back her right to say no instead of treating that right as something she always has whether the marriage is peaceful or not.
3.0. The Evidentiary Problem of Spousal Rape
Whatever one makes of that ambiguity, we also need to look at the general rules of evidence that apply to all rape and sexual assault cases in Nigeria. In Posu v State (2011) 2 NWLR (Pt 1234) 393 (SC), the Supreme Court set out what the prosecution must prove that the accused had sex with the complainant, that it happened without her consent (or that her consent was tricked out of her), that he meant to do it and that penetration happened, even slightly. Iko v State (2001) 14 NWLR (Pt 732) 221 (SC) made clear that mere suspicion is not enough to convict which is why courts have long looked for evidence that backs up the complainant’s account but Mohammed v Kano State (2018) 13 NWLR (Pt 1635) 85 (SC) confirms that this is not a strict legal rule. In practice, however, a spousal case is harder as there is usually no witness, no forensic trail beyond the wife’s own account and under the DPP’s own approach, the added task of proving the marriage was already strained.
The evidentiary problem gets worse because of where this offence happens. Sexual violence in marriage occurs inside an ongoing relationship i.e, one built on living together, financial dependence and often pressure from family or religion to keep the marriage intact. A wife who reports her husband risks losing her home, her income, and her standing with her family usually while still living with him during the case.
4.0. Institutional Barriers
Nigeria’s criminal justice system offers little in the way of protection orders or emergency housing for this kind of situation. Everything depends first on the police treating the complaint as a crime not just a family quarrel to be settled at home and there is little sign that Lagos police have been trained to do that. Unless the police are clearly directed to investigate these complaints as sexual assault by penetration, section 261 will stay out of reach for most women.
There’s also uncertainty about how courts will actually handle this as so far there is no reported Lagos case that has convicted a husband of sexual assault by penetration against his wife. Judges used to seeing marriage as a factor that affects a complainant’s believability or who see the marital bed as something to be settled through reconciliation rather than prison, may hesitate to convict the accused especially where the marriage was still intact at the time. What would really strengthen this provision is a clear position or ruling stating that section 261 applies regardless of marital status with no need to show the couple was estranged. That would matter more than any statement from the DPP since it is judges who decide guilt or innocence in the end.
Society makes all of these weaknesses worse because the bride price myth that the DPP had to publicly reject shows that many Nigerian communities still believe marriage gives a man a standing right to his wife’s body, an idea the law now rejects but society has not caught up with. If a husband is charged under section 261, his family and hers will likely see it as an unwelcome intrusion into a private matter not as protecting the wife’s right over her own body. That view will affect whether she reports it, whether her family backs her and how hard the police and prosecutors actually pursue the case. Experience elsewhere shows that laws like this tend to move ahead of public attitudes and that scrapping the marital exemption only leads to real convictions once it’s paired with sustained public education.
5.0. Conclusion
Taken together, these factors suggest that section 261 of the Criminal Law of Lagos State is a genuine and potentially powerful provision but one whose present enforceability is considerably narrower. The most direct remedy would be for the Lagos State House of Assembly to amend section 260 to remove the marital exemption outright so that liability for the same conduct does not depend on which of two neighbouring provisions a prosecutor chooses to invoke.
Also, the Nigeria Police Force in Lagos should be directed to treat complaints of non-consensual sex between spouses as sexual assault by penetration rather than as material for informal reconciliation. Until each of these steps is taken, section 261 will remain what it currently is which is a provision of considerable latent strength, resting on uncertain administrative goodwill, and awaiting the case that will finally test whether Lagos means what its Directorate of Public Prosecutions has said.
Victor Sunday is a legal writer, researcher, orator and public affairs analyst. He can be reached at victorsundayonwukwe@gmail.com
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