Dissecting Some Contemporary Issues On The Offence Of Rape

By Theophilus Orumor Esq

Over the last couple of weeks, the Nigerian news media has been awashed with the reportage of series of rape incidences across the length and breadth of the country. More worrisome is that perpetrators of the heinous act have become more dastardly in their methodology often preferring to leave their victims for dead and or terribly anguished or badly bruised .From the available news reports, there are yet increased cases of defilement of minors and children. The very elderly and widows have not been left out in this new scourge.

The current and trending rape pandemic is yet another pandemic ravaging a nation barely trying to exit the covid19 pandemic. The intendment of this  concise  and lucid piece is  to raise awareness on this new wave of pandemic and critically dissect some legal questions on the issue of  the offence of rape .The format of the legal questions to be examined are as follows :What is rape.? Who can be raped? How do you prove the offence of rape.? What is the punishment for rape? What other offences are similar to rape? What are the defences to the offence of rape? What is the correlation between indecent dressing and rape?

What is Rape?

This seemingly rhetorical and   innocuous question is quite germane in view of the existence of  other forms of sexual assaults in the classifications of offences against the person. The clear and distinct examination of this question further becomes very relevant especially when examining the issue of rape in established relationships for example between married couples.

Simpliciter, rape is a specie of sexual assault characterized by having sexual intercourse (penetration ) with a  woman   without   her consent. Section 260(!) of the Criminal Law of Lagos 2015 hit the nail on the head when it defined  the offence of rape as follows :

260(1) Any man who has unlawful sexual intercourse with a woman or girl without her consent, commits the offence of rape…

See also Section 357 of the Criminal Code Act and Section 1(1) of the Violence Against Person(Prohibition) Act 2015 

The key ingredients for the offence of rape, from the above statutory definition, are unlawfulness of the sexual intercourse and that the sexual intercourse was without the woman or girl’s consent. Obtaining a woman’s consent by use of force, impersonation, threat or intimidation  of any kind, fear of harm or false or fraudulent  representation  before the unlawful sexual intercourse still renders the sexual intercourse   to be  rape. The law specifically defines “sexual intercourse” as complete on the slightest penetration of the vagina. It does not matter that the hymen was not ruptured( in the case of virgins).

The above  definition tallies  with the definition  of the offence  by the Nigerian Appellate Court  in the case of Ahmed v. The Nigerian Army (2011)1 NWLR 89 where the Court of Appeal defined “rape” as follows:

“The offence of rape is the 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 threats 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 in the case of a married woman, by personating her husband….It may be stated differently by saying that rape, means a forcible sexual intercourse with a girl or woman without her giving her consent to it.

Who can be Raped?

The specific definition of the offence of rape in the above law under reference, applicable to Lagos State, automatically clarifies some knotty issues such as :which gender can be raped? And whether there can be said to rape amongst a married couple? From the earlier elucidations  above, it is opined  that as for case of Lagos and some other states of the Federation of Nigeria,  the  controversial question of whether a man can be raped by a woman does  not even   arise as that is not the intent or clear provision of the law. It is only a woman and or a girl that can be raped. This of course includes the girl child. Section 137   of the Criminal Law of Lagos 2015  and  Section 27 of the Child Rights Law of Lagos 2015  clearly outlaws sexual intercourse with a child. Under aforesaid Child Rights Law, a child is person under the age of 18years.

The situation would appear slightly different under the Violence Against Person(Prohibition) Act 2015 (applicable only to Abuja FCT)  which  under section 1(1) states that a “he or she” can commit rape ,meaning that a man or a woman can now be liable under the said Act.

As to the issue of whether a man can rape  his wife, it will appear that Section 260(3)  of the Criminal Law of Lagos 2015  attempts to clarify this question when it states thus “Sexual intercourse between a man and a woman who are married is not unlawful.”

From the above, it is opined that though a man cannot be raped (at least, under Lagos Laws) his remedy may lie with alleging some other offences similar to rape. Further, though a married man may not be held to have raped his wife( by reason of the lawfulness of the sexual intercourse), the fact that such sexual intercourse is without the consent of the wife is a ground for the wife to proceed against the husband by alleging other offences similar to rape. These similar offences would highlighted thereafter

 How do you prove the offence of Rape?

In the case POSU & ANOR v. THE STATE (2011) 3 NWLR 393,the Nigerian Supreme Court itemized  the requirements for the proof of rape  when the court held as follows:

“In a charge of rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove the following –

(a) That the accused had sexual intercourse with the prosecutrix.

(b) 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.

(c) That the prosecutrix (victim) was not the wife of the accused.

(d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.

(e) That there was penetration.

Intrinsic with the issue of the proof of rape is the knotty issue of corroboration. Corroboration  simply means confirming or giving support to either a person, statement or faith.See Popoola vs State(2011) LPELR-4860(CA)

The requirement of corroboration was a specific requirement of the provisions of 179(5) of the repealed Evidence Act of 2004 which provided that a person cannot be convicted  of the offence mentioned in section 218(defilement)….. of the Criminal Code Act  upon the uncorroborated testimony of one person (note that the Criminal Code Act  applies only to some Southern Nigerian states that do not  have their own individual criminal laws). It is was worthy of note that the above requirement  in the aforesaid section was expunged from the Evidence Act of 2011 although is still left under the aforesaid section  218 of the Criminal Code Act

Is corroboration still a necessary ingredient to  prove  the  of offence of rape? It is opined, at least for states where both the criminal code and penal code are not applicable, that this is no longer a necessary  requirement in view of the   expunged   section 179(5) of the former Evidence Act  from the new Evidence Act 2011.

A careful perusal of Chapter 25 of the Criminal Law of Lagos, dealing on sexual offences, does not in any way  state the need   for and or requirement of corroboration of a testimony before a conviction can be made. Where same is not expressly stated under the substantive and procedural laws of a jurisdiction, then the  probative evidence of a single witness suffices. See the case of Mohammed v. State (1991) 5 NWLR (Pt.192) 438  where the Supreme Court held  as follows:

Thus unless corroboration is required by law, the evidence of a single witness of the right probative value has always been accepted as sufficient proof for the offence as charged.”

What is the punishment for Rape?

Under section 260(1) of the  Criminal Law of Lagos 2015 the punishment for rape is  a term of life imprisonment. Under Section 358 of the Criminal Code Act  which prescribes same term of  life imprisonment, the life imprisonment could be with caning or without caning. Under section 1(2) of the Violence Against Person(Prohibition) Act 2015,where the offender  is less than 14 years of age, the  punishment for him or her is a term of imprisonment for 14 years. In all other cases, to a minimum of 12 years imprisonment and where  it is a gang rape, the offenders are liable to a  minimum term of 20 years imprisonment. The  court is also mandated to award  appropriate compensation to the victim of rape, while a register for convicted offenders shall also be maintained for  public access.

What other offences are similar to Rape?

The Criminal Law of Lagos 2015 and other relevant laws  contains an avalanche of similar offences to rape. This list  and the punishments are reproduced hereunder”

1. Child defilement under section 137 of the law,life imprisonment;
2. Sexual assault by penetration under section 261 of the law, life imprisonment;
3. Attempt to commit rape and sexual assault by penetration under section 262 of the law,14 years imprisonment;
4. Sexual Assault(sexually touching another person without their consent under section 263 of the law,3 years imprisonment;
5. Sexual harassment (unwelcome sexual advances) under section 264 of the law,3 years imprisonment;
6. Causing a person to engage in sexual activity without consent under section 265 of the law,5 years imprisonment;
7. Abduction under section 267 of the law ,7 years imprisonment;
8. Abduction from custody of parents under section 268 of the law,10 years imprisonment;
9. Defilement of children under 13years of age under section 218 of the Criminal Code Act, life imprisonment, with or without canning;
10. Coercion under section 3 of the Violence Against Person(Prohibition) Act 2015,3 years imprisonment;
11. Wifully placing a person in fear of physical injury, under section 4 of the Violence Against Person(Prohibition) Act 2015,2 years imprisonment  or to a fine N200,000.00 or to both;
12. Offensive Conduct under section 5(1) of the Violence Against Person(Prohibition) Act 2015,2 years or to fine of N500,000.00 or to both.

Defence to Rape

Except for the cases of defilement where consent is immaterial as a child is deemed incapable of giving consent,  the issue of ‘consent’ is one ground mostly raised in rape cases. ‘Consent’ means that the victim consented to the act. The Supreme Court aptly stated the issue in the case of Ogunbayo v. State (2007) ALL FWLR (Pt. 365) 408 at 425 – 426; Paras. H – A (SC) where the court held thus

“Consent of the victim is a complete defence to the offence of rape. Queen v. Kufi (1960) WNLR 1; R. v. Harling (1938) 2 ALL ER 307, 26 CAR 127; D.P.P. v. Morgan (1975) ALL ER 147; R. v. Morgan (1976) AC 182.”

As easy as it may sound, the  issue of consent has its own complexities. This necessitates the clear provision of section 266(1) &(2) of the Criminal Law of Lagos  2015which states thus

• For the purpose of this Chapter, a person consents if he agrees by choice and has the freedom and capacity to make and communicate that choice.
• In determining whether a person charged had reasonable grounds for believing that another person consented, the court shall have regard to all the circumstances, including any step taken by the defendant to ascertain whether the woman or girl consented.

Indecent dressing and Rape

Arguments are being raised as to the connection between indecent dressing   and the offence of rape, i.e  the indecent dressing of victims and the rape offenders, insinuating that indecent dressing proportionally increase rape cases.

It is opined that the issue of indecent dressing is not a defence or excuse  for rape. As there   are no one agreeable universal, country or state codes as to what constitutes ‘decent dressing’  in the female gender, the issue of indecent dressing is a subjective matter which cannot justify any criminal offence let alone rape.

Whether ‘indecent dressing’ constitutes ‘indecent acts’ as to criminalize the act of indecent dressing under section 134(1) of the Criminal Law of Lagos 2015 is a discussion for another day.

Written By Theophilus Orumor Esq.
The Law House.
info@thelaw-house.com