By Tuviere E. Toweh* & Oluwatosin S.A. Ogunlana ACArb*

Abstract

In contemporary society, the right of every person to protection from sexual violence is immutable. Prior to recent times, the offence of rape did not receive as much attention as it does today. This was as a result of the taciturn and reticent attitude of the media- and by extension the society at large- towards the subject of rape.

This paper examines the law of rape in Nigeria, showing the necessity for an urgent change in Nigeria’s domestic laws on rape which is static in comparison with the ever-changing laws in other jurisdictions around the world. The paper posits that the law on rape in Nigeria is too archaic and inadequate to deal with the rising cases of sexual violence in the country. The problem in this regard is further underlined by the lethargy of the lawmakers in reinventing the laws on the subject. The paper further highlights the inadequacies of the Nigerian laws on rape by It seems that the law as it is, is incapable of deterring the naked and raw urge to commit the offence. The paper concludes by suggesting reforms to the law on rape in Nigeria.

Key Words: Rape, Sexual Assault, Non-consensual Intercourse.

1.0.0   Introduction

Historically, the law of rape was focused on virginity. Thus, the law was preoccupied with protecting virgins from being raped. According to Davis,[1] in Capitalist states, rape laws were originally enacted to protect upper class, whose daughters and wives might be assaulted, rather than protect the women. In essence, the law was interested in protecting the male property in the female body. This was buttressed by Macfarlane[2] when he said: ‘In earlier times, the offence was linked more with notions of property and theft than with principles concerning the security of persons.’

At the onset, it is important to recognize some realities about the offence of rape. Accordingly, the offence is the most serious of sexual offences, the victims of rape are overwhelmingly female,[3] and rape cases are perhaps the most underreported of all serious crimes.[4]

The focus of this paper is to look into areas of reformation in the area of law prohibiting rape considering cogent lessons from foreign jurisdiction. However, the writers will consider the provision as well as the requirements to establish rape to assess areas of reformation.

2.0.0   The Position of Law on Rape in Nigeria

The most serious form of assault on females is rape, which has been defined as “an unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will.[5]” It is made an offence under Section 358 of the Criminal Code which provides that: “any person who commits the offence of rape is liable to imprisonment for life, with or without canning.”

The Criminal Code itself defines rape in Section 357 as follows:

“Any person who has unlawful carnal knowledge of a woman or a girl, without 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 representations 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”

Accordingly, a man is said to commit rape which, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstances:

  1. Against her will
  2. Without her consent
  3. With her consent, when her consent has been obtained by putting her in fear of death or of hurt;
  4. With her consent, when the man knows that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
  5. With or without her consent, when she is under fourteen years of age or unsound mind[6]

The Violence Against Persons (Prohibition) Act, 2015[7]  construes rape to have been committed if:

  1. He or she intentionally penetrates the vagina, anus, or mouth of another person with any other part of his body or anything else;
  2. The other person does not consent to the penetration; or
  3. The consent is obtained by force or means of threat 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 the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.

It is imperative to note that the Violence Against Persons (Prohibition) Act, 2015 is only applicable in Abuja and in the Federal Courts.

3.0.0   Ingredients to Prove the Offence of Rape in Nigeria

The following ingredients must be established to prove the offence of rape absence of which the case will ultimately fail. They are as follows:

  1. Carnal Knowledge
  2. Penetration
  3. Unlawful Carnal Knowledge
  4. Lack of Consent of the Victim
  5. Capacity in Rape case

3.1.0. Carnal Knowledge

This simply means the act of having sexual intercourse with woman. The expression used to denote this act at common law and under the Penal Code is sexual intercourse. This constitute the Physical element of the offence rape, thus irrespective of the nomenclature the main ingredient is that there must be penetration, that is to say, the insertion of the penis into the vagina[8]. The Supreme Court of Nigeria stated the law succinctly thus:

“The important and essential ingredient of the offence of rape is penetration. Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. Emission is not necessary requirement. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Thus, where penetration is proved but not of such depth as to injure the hymen, it will be sufficient to constitute the crime of rape…[9]

This emphasizes that, the slightest contact of the penis with the vagina, that is the outer vulva or labia minora with constitute penetration.

3.2.0. Penetration

There cannot be rape without ‘penetration’; the slightest penetration is sufficient.[10] Penetration takes place when the male organ reaches the labia minora which is outside the female vagina.[11] The law recognizes only the male penis as the object that can be used to commit rape.[12] Penetration must be through the vagina and not through the anus.[13] This distinguishes the present position of the law in Nigeria from the English law where the penetration could be vaginal or anal[14] It is not necessary to prove that the hymen was not ruptured, the slightest penetration will suffice.[15] Emission of semen need not to take place for rape liability to be imposed[16]

3.3.0. Unlawful Carnal Knowledge

For the accused to be guilty of rape, the carnal knowledge or sexual intercourse must be unlawful. This means carnal connection which takes place otherwise than between husband and wife and wife.[17] It has been held that the term unlawful carnal knowledge means “extra marital[18]”.

3.4.0. Lack of Consent of the Victim

An important issue in the offence of rape is the mental state of the accused. The absence of the victim’s consent to sexual intercourse is an essential feature of rape.[19] The prosecution must prove that the accused had carnal knowledge of or sexual intercourse with a female without her consent. Consent must be real; consent to sexual intercourse as a result of: Threat,[20] trick,[21] fraud,[22] false representation,[23] intimidation, fear of harm,[24] consent of a female who is drunk,[25] consent given by mistake as in the case of impersonating a woman’s husband[26] may amount to rape. It has also been held that when a person is not in a position to decide whether or not to consent as in such cases where the person is so mentally deficient[27] or young[28] asleep or unconscious.

3.5.0. Capacity in Rape Case

The Criminal law recognizes that certain persons are incapable of committing certain offences due to some factors such as age, gender or sex, marital status or mental state. Each of these factors is discussed in detail below.

3.6.0. Age

By virtue of Section 30 of the Criminal Code, a male person under the age of 12 years is presumed incapable of having carnal knowledge. Thus, no evidence is to be tendered that he is physically fit and capable of committing the act. However, a boy under 12 years but above 7years aids and abets a male person in having sexual intercourse of a female, he can be liable for rape[29]

3.7.0. Gender or Sex

The provision of Criminal Code on rape provides that only a male person can be guilty as a direct participant in a rape case. Thus, a woman cannot be guilty of directly committing the offence of rape by virtue of Section 7(b) of the Criminal Code which provides for principal offender rule. However, she will be liable when she aids a male in perpetrating the rape of another female. Thus, a wife was convicted of rape for holding the house maid down while the husband had sexual intercourse with her.[30]

3.8.0. Marital Status

In Nigeria considering the provisions of the law as aforemen0tioned under Penal and Criminal Code the marital rape exemption still exists. Thus, it is not possible for a husband to be guilty of raping his wife. However, he can be guilty of aiding and abetting the commission of rape[31]

It is worthy of note that the foregoing ingredient must be established and proven before conviction can be granted for rape. In the absence of any of the above it can lead to an acquittal of the accused thereby vitiating the allegation of rape.

4.0.0   The Law on Rape in Foreign Jurisdiction

Observably, no society can exist in isolation, the strength of every society lies in its ability to learn and unlearn by bringing into perspective the situation in other climes. Similarly, no critical analysis is complete without a consideration of the views of others. In order to critically examine the law on rape in Nigeria, it is pertinent to consider similar provisions under the laws of various other countries.

It is safe to conclude that although there are laws on rape in several countries, the provisions in the countries are very different. Despite these differences, the general consensus is that rape is unlawful sexual intercourse with another person without the consent of that other.

Subsequent paragraphs will be considering the various provisions on rape in several other jurisdictions.

4.1.0. The Position of Law in South Africa-

In South Africa, a person will be guilty of the offence of rape if the person (‘A’) unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B. Section 1 and Section 349 Criminal Code 1899 Queensland Consolidated Acts; Section 3 Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007 South Africa Page defines ‘sexual penetration’ to “include any act which causes penetration to any extent whatsoever by:

  • the genital organs of one person into or beyond the genital organs, anus, or mouth of another person;
  • any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or
  • the genital organs of an animal, into or beyond the mouth of another person, and ‘sexually penetrates’ has a corresponding meaning.

This definition shows further that the offence of rape is not limited to a particular gender in the course of its commission. Furthermore, the offence of rape may not only be committed by persons, but may be committed if an animal is made to penetrate a person.

4.2.0. The Position of Law in Australia-

The position in Austaralia appears to be a little more complex. This is because the provisions on rape are not contained in a single document. Rather, each territory and state has its own unique provision. However, the general consensus can be summerised thus-

In Austaralia, person is said to rape another person if—

  • the person has carnal knowledge with or of the other person without the other person’s
  • consent; or
  • the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or
  • the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent[32].

In the definition above, it is imperative to observe that rape is not just about carnal knowledge without consent; it includes penetration of the vulva, vagina, anus or even mouth with a penis and even with any part of the body not being the penis. The definition above entails that a man can and a woman equally can commit the offence of rape.

In Australia, the punishment for the offence of rape is life imprisonment[33].

It is also noteworthy to state that the International Criminal Court for Rwanda described rape as, “a form of aggression” and stated that “the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts”. It defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.”

The International Criminal Tribunal for the former Yugoslavia in the Delalić case also held that rape could constitute torture when the specific conditions of torture were fulfilled.

In the United States, ‘rape’ has been defined as ‘penetration no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.’

It can therefore be said that in the international community, rape is any sexual contact that is accompanied by penetration of whatever orifice of any gender without consent.

However, the provisions on rape in the United Kingdom appear to be contrary to that of many other countries in the world as it provides that only men can be charged with rape. A woman can however be charged with sexual violence.

4.3.0. Global Development of the Law on Marital Rape

As the concept of human rights has developed, the belief of a marital right to sexual intercourse has become less widely held.

In 1965, Sweden altered its statutes so that husbands could be charged for raping their wives. In December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women. This Declaration established marital rape as a Human Rights violation. In 2006, the UN Secretary General stated that

“Marital rape may be prosecuted in at least 104 States. Of these, 32 have made marital rape a specific criminal offence, while the remaining 74 do not exempt marital rape from general rape provisions. Four States criminalize marital rape only when the spouses are judicially separated.”

Some of the earliest countries to criminalize marital rape include Poland (1932), Czechoslovakia (1950), the Soviet Union (1960), Denmark (1960), Sweden (1965), Norway (1971), and some other members of the Communist Bloc. In 1980, The Israeli Supreme Court affirmed that marital rape was a crime[34]. Criminalization in Australia began with the state of New South Wales in 1981, followed by all other states from 1985 to 1992. Several formerly British-ruled countries followed suit: Canada (1982), New Zealand (1985), and Ireland (1990).

Many United States rape statutes formerly precluded the prosecution of spouses, including estranged or even legally separated couples. In 1975, South Dakota removed this exception. In 1993, North Carolina became the last state to remove the spousal exemption. However, as of 1999, 33 of 50 U.S. states regard spousal rape as a lesser crime. The perpetrator may be charged with related crimes such as assault, battery, or spousal abuse. There are other criminal charges that may be inapplicable to married couples. For example, in the U.S., there is a marriage exemption to the charge of statutory rape even if one of the spouses is under the age of consent in the jurisdiction where the sexual act takes place. Germany outlawed spousal rape only in 1997, which is later than other developed countries after several female ministers and women’s rights activists lobbied for this law for over 25 years.

In India, the Protection of Women from Domestic Violence Act 2005[35] created a civil remedy for victims, but it did not criminalize marital rape. Under that law, a person may only be imprisoned if a court order has been violated.

Taweekiet Meenakanit voiced his opposition to legal reforms that made spousal rape in Thailand a crime. He said it was “abnormal logic” to allow a man to file a rape charge against a woman. He also disagrees with making a crime of a husband raping his wife, on the grounds that this would be difficult to effect since many Thai wives were dependent on their husbands and would not want to divorce them or put them in jail.

Some of the more recent countries to criminalize marital rape include Turkey (2005), Mauritius (2007), Ghana (1998/2007), Malaysia (2007), Thailand (2007), Rwanda (2009), South Korea (2009), and Jamaica (2009).

It is also noteworthy that some Human rights observers have criticized certain countries—including Japan, Poland, and Kazakhstan—for failing to effectively prosecute marital rape after making it a crime.

5.0.0   Incongruities of the Law on Rape in Nigeria: A Reformative Approach

The evolution of the world has shown the existence of new forms of social co-existence which were not prominent or in contemplation in Nigeria as at when both codes were enacted. Thus, the need for reformation in this area of law. It is in this regard that I propose the following reformation.

  • Object of Penetration

Contrary to the position of the Criminal and Penal Code, in contemporary world, it is evident that penis is not the only object of penetration, there are other objects such as fingers, artificial penis,[36] fruits like plantain or banana, other objects like pencil, bottles etc. all of which can give carnal satisfaction to some men thus suffices for carnal knowledge. This implies that the scope of object for penetration should be expanded to accommodate other objects and not limited to penis. The Violence Against Persons (Prohibition) Act (VAPPA), 2015 expands the scope of penetration to include other object or body part.[37] However, as earlier noted, the VAPPA is applicable to Abuja and Federal Courts across Nigeria. The provision in South Africa accommodates “any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person, additionally the genital organs of an animal, into or beyond the mouth of another person, and ‘sexually penetrates’ has a corresponding meaning.”[38] The Australian position covers penetration to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent.[39]

  • Capacity in Rape Cases

It is imperative to note that today we have lesbians and hermaphrodites[40] and as such females can have carnal knowledge of another woman and even penetrate, likewise a man can be raped. Also, in some climes, it has been recognized that husbands can rape their wife and as such it has been criminalized. Thus in England the case of R v. R(Husband) exemplifies that marital rape is now recognized thus the House of Lords per Lord Keith said: “Section 1(1) of the Sexual Offences Act 1976 presents no obstacle to his house declaring in modern time [that] the supposed marital exception in rape forms no part of the law in England”[41] In Nigeria, only Violence Against Persons (Prohibition) Act, 2015 recognizes that a woman can rape another woman or man.[42] However, the Act is silent on spousal rape.

Thus, it is suggested that Nigeria should give recognition to marital rape and also recognize the fact that women can be raped in the reformation of our Criminal Codes on rape. As aforementioned some countries and even many more of the earliest country to criminalize marital rape are Poland (1932), Czechoslovakia (1950), the Soviet Union (1960), Denmark (1960), Sweden (1965), Norway (1971), and some other members of the Communist Bloc. Some of the more recent countries to criminalize marital rape include Turkey (2005), Mauritius (2007), Ghana (1998/2007), Malaysia (2007), Thailand (2007), Rwanda (2009), South Korea (2009), and Jamaica (2009).

  • Penetrated Part

The Nigerian Criminal and Penal Codes provide that only the vagina can be penetrated, however it is apparent that, the mouth and anus can be penetrated. In Nigerian, only the Violence Against Persons (Prohibition) Act, 2015 recognizes this with its limited applicability.  In England, both vagina and anus can be penetrated.[43]In Australia, the penetrated part includes the vulva, vagina or anus of the other person, or the person penetrates the mouth. This should also be given recognition in Nigeria as there can now be oral, anal and vaginal sexual intercourse.

  • Rape Victims

In addition, men also are rape victims and not only females as the codes have recognized. Today we have homosexuals who have sexual drive towards men and may eventually rape a man. This shows the possibility of a man being raped. Asides Violence Against Persons (Prohibition) Act, 2015 other laws do not recognize the possibility of a man getting raped by either male or female. This is another area in need of amendment.

6.0.0   Conclusion

As aforementioned, the most serious form of assault on females is rape. Rape has been defined as “an unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will.[44]

The above work has attempted to consider the laws on rape in Nigeria with a view to suggesting possible reforms. In pursuit of this discourse, the provisions on rape in other countries are considered. The work begins by outlining a brief introduction to the concept of rape. It goes on to consider the legal position on rape in Nigeria. It goes further to consider the provisions on rape in various other countries. It concludes by suggesting succinct and realistic reforms for the law in Nigeria.

It is the view of the writers that the above proposed reformation should be looked into in order to ensure that the offence of rape can meet contemporary standards and foster access to justice.

[1]Davis Angela, Women, rape and class, New York, Vintage Books 1983.

[2]Quoted in, Oluyemisi Bamgbose & Sonia Akinbiyi, “Criminal Law in Nigeria” (1st Ed. 2015) Published by Evans Brothers (Nigerian Publishers) Limited. @Pg 175

[3]This is not to say that males are not sexually assaulted

[4]Expert offer numerous reasons for this underreporting; most agree that the trauma and stigma that too often attend the formal investigation and prosecution of sex crimes lead many victims to fear being re-victimized by the judicial system

[5]Blacks Law Dictionary @pg 1374

[6]In Ogunbayo v. The State [2007] 8 NWLR (Pt. 1045) 157, the prosecutrix was thirteen years

[7] Applicable in Abuja and all Federal Courts in Nigeria

[8]Ogunbayo v. State [2007] 8 N.W.L.R. (Pt. 1035) 157

[9]Ogunbayo v. State Supra pg 182-183 and Jegede v. State [2001] 14NWLR (Pt. 733) 264

[10]Iko v. The State [2001] 4NWLR (Pt. 733) 221

[11]R v. Kofi [1960] WRNLR 1.

[12]Ahmed v. Nigerian Army [2011] 1NWLR (Pt. 1227) 89 CA

[13]Iko v. State Supra

[14]Section 1 of the Sexual Offences Act 1956 (SOA) as substituted by Section 142 of the Criminal Justice and Public Order Act 1994

[15]Iko v. State Supra

[16]Iko v. State Supra

[17]Section 6, Criminal Code

[18]R v. Chapman [1959] 1QB 100; [1958] 3 AER 143

[19]Jegede v. The State [2001] 1NWLR (Pt. 695) 623

[20]R v. Jones [1861] 4LT 154

[21]R v. Williams [1923] 1KB 340

[22]R v. Lang [1975] 62 CAR 50

[23]R v. Williams [1923] 1KB 340

[24]The state v. Rusk 424 A. 2d 720 (Maryland Court of Appeal, 1981)

[25]R v. Lang supra

[26]Section 357 of Criminal Code

[27]R. v. Lang [supra]

[28]R v. Bratt [1873] LR 2 CCR 81.

[29]Section 7(b) of Criminal Code

[30]R v. Ram [1893] 17 Cox CC 609

[31]Section 7(b) Supra

[32] Criminal Law Consolidation Act 1935.

[33]Crimes Act 1900 (New South Wales), S. 611; Criminal Law Consolidation Act, 1935 (Southern Australia), S. 48; Criminal Code (Western Australia), S. 325; S. 185, Criminal Code (Tas); S. 54, Crimes Act 1900 (ACT).

[34] The court relied on provisions of the Talmund. The Talmund is a collection of writings that cover the full gamut of Jewish law and tradition, compiled and edited between the third and sixth centuries.

Talmud is Hebrew for “learning,” appropriate for a text that people devote their lives to studying and mastering.

The main text of the Talmud is the Mishnah, a collection of terse teachings written in Hebrew, redacted by Rabbi Yehudah the Prince, in the years following the destruction of the Second Temple in Jerusalem.

[35] Passed August 2005; entered into force October 2006.

[36]Such as a Dildo

[37] Section 1, Violence Aainst Persons (Prohibition) Act, 2015

[38]Section 1 and Section 349 Criminal Code 1899 Queensland Consolidated Acts; Section 3 Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007 South Africa

[39] Criminal Law Consolidation Act

[40]They have both male and female genitals

[41][1992] 1AC 599.

[42] Section 1(a) Violence Against Persons (Prohibition) Act, 2015

[43]Section 1 of the Sexual Offences Act 1956 (SOA) as substitution by Section 142 of the Criminal Justice and Public Order Act 1994

[44]Blacks Law Dictionary @pg 1374

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