Rape generally is defined as unlawful carnal knowledge without consent. Consent must be freely and willingly given without any form of threat, coercion and/or intimidation and a woman must be in a position to give her consent. The pricking question that has prompted the writer to write this article is whether the offence of rape can be committed within marital relationship? giving the ever evolving nature of society if there are laws in place to keep up with the changing times and if not the need for the guiding hands of legislature or pronouncement from the courts on these area.
Rape is a criminal offence defined under Section 357 of the Criminal Code as
“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 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, is guilty of an offence which is called rape”
Section 281 (1) of the Penal Code also gave a similar definition.
While Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration. In other words, marital rape is unknown to Nigeria law. Under Nigeria legal system it is assumed that the wife gives implied general consent to sexual intercourse with her husband upon entering the marriage contract. Under customary law a woman is handed over to the husband upon payment of dowry, some interpret this to mean that she becomes his “property” that he can have sex with whenever he desires. After all he has paid for her. In this context a husband is said to have paid for his wife and she does not have an opinion when it comes to sexual relations. In other word she cannot deny her husband sex even when she is not in the mood. If he wants it and she is not in the mood he has the right to take it by force not minding the emotional trauma, tearing, and danger it poses to the woman. After all she is his property and by virtue of the bride prize and dowry he can have his way anytime, whether she consents or not.
So many scholars have argued that marriage create conjugal rights between spouses and marriage could not be annulled except by an order of court and/or parliament, it therefore follows that a spouse could not revoke conjugal rights from the marriage and therefore there could be no rape between spouses. More so, that one of the major reliefs sought under the Matrimonial Cause Law is restitution of conjugal right which means that the couples has right not to be deprive of sex in marriage and if so deprive can on that ground solely sought dissolution of the marriage. Even the Bible state in 1 Corinthians 7:4-5 that:
“The wife hath not power of her own body, but the husband: likewise also the husband hath not power of his own body, but the wife. Defraud ye not one the other, except it be with consent for a time, that ye may give yourselves to fasting and prayer; and come together again, that Satan tempt you not for your inconsistency”
Furthermore, Sir Matthew Hale in his book “History of the pleas of the Crown” (1736) wrote:
“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract”
This implied consent is revocable either by an order of court or a separation agreement. Until the 20th century the American and English law subscribed to this system of coverture i.e a legal doctrine under which a married women’s legal rights is subsumed by those of her husband but that position has since be abolished/ended by the courts in the case of Kirchberg Vs Feenstra, 450 US. 455 (1981).
Unwanted sex in marriage
Rape or sexual assault within marriage though not recognize under Nigeria law is not uncommon in marriage. Many women are survivors of sexual assault or some sort of sexual coercion by their husband or intimidating partners. From survey conducted and facts gathered from private discussions many wives have revealed that they had unwanted sex with their husbands because they believe it is their duty or because their husband bullied them. Some wives are even physically abuse if they say no. this is a form of domestic violence and many wives are afraid to speak out or are too embarrassed to speak out. These wives suffer from depression, post-traumatic stress disorder, loss of trust, shock, intense fear, anxiety etc as a result of forceful and/or unconsented penetration by their spouse.
According to Bertrand Russell (who was awarded the 1950 Nobel Prize in literature) in his book “Marriage and Morals (1929) he deplored the situation of married women. He wrote “marriage is for woman the commonest mode of livelihood, and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution”.
Criticism of the laws defining rape in Nigeria
Criticism of the provisions of Section 357 of the Criminal Code and Section 281 of the Penal Code raises three (3) core issues which are:
- The offence of rape is gender specific, only men can commit the offence of rape, possibility of women committing rape against their spouse i.e can a man be arouse against his will, if not does arousals amount to consent?
- The act amounting to rape is limited to penile penetration of the vagina, anal or oral sex or penetration using objects or other parts of the body such as using objects or other parts of the body such as the tongue or fingers do not constitute sexual intercourse for the offence of rape
- Marital rape, both codes provide that sexual intercourse between husband and wife cannot constitute the offence of rape not minding the emotional and psychological scars unwanted sex leave on the women.
Certainly in the United Kingdom and United State of America, a husband would certainly be arrested for rape if he forcefully penetrates his wife. Marriage over there is a partnership not ownership. A woman body belongs to her not the husband. No means no even if you are married and it is still rape if you forcefully penetrate your wife without consent.
This issue presently facing Nigeria has since been resolved in the U.S from the nineteenth century via agitations feminist demands (core activist such as Elizabeth Cady Stanton and Lucy Stone) centered on the right of women to control their bodies and fertility, consent in marital sexual relations as an alternative to contraception and abortion. Also the Indian Supreme Court just recently in October held that sex with wife below 18 years is rape (vanguard news October 11, 2017)
Presently Section 16-3-615 of the South Carolina Code and other European laws recognize marital rape and prosecute same in the same way that rape between strangers is prosecuted.
In Nigeria today there seems to be some level of hope with the recently passed Sexual Offences Act 2015 and the Lagos State government law enacted against domestic violence i.e “The Protection against Domestic Violence Law 2007” under which both made male and female can be liable for the offence of rape and while it went further to define sexual abuse as “any conduct that abuses, humiliates, degrades, or otherwise violates the sexual integrity, or dignity of the victim etc. It would be interesting to see how lawyers and the courts in Lagos put this law to use, and disturb the illusion that a wife gives an in evocable, unqualified consent to sexual intercourse once she enters into a marriage.
Conclusively, marital rape can happen in any relationship, it does not have to be violent or even physical abuses, emotional and psychological trauma suffices (domestic violence). However, it will be difficult proving rape by spouse, because married couples usually have consensual sex, so it will take evidence of marital discord or separation to show that the sexual activity or intercourse was nonconsensual.
For now, under Nigerian Criminal Law, a man may be charged with assault, depending on the circumstance under which he has sexual intercourse with his wife, but he cannot be charged with raping his wife.
Agherario Emmanuel Esq., Legal Practitioner Base in Warri
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