Law is dynamic and not static and therefore, it grows with the growth of the people and changes with the changes in the society. The Nigeria criminal code was enacted in the 1900s, borrowing old ideas, and its provisions on sexual offences have undergone very minor and insignificant changes or amendments. There is a need to go beyond piecemeal amendments and consider comprehensive legislations, preferably a separate code on sexual offences, which will enhance development.
The Nigeria criminal law in the area of sexual offence of rape is full of uncertainties; therefore, a call to bring certainty and clarity to the existing state of affairs is a call in the right direction. This is obvious comparing the present level of development in our society with other countries. Despite the fact that these legal provision form the offence of rape in the Nigeria Criminal Legislation, a lot of inadequacies are embodied in the legislation as well as in practice as they relate to rape thereby making the law in Nigeria archaic and in dare need of reforms when compared to the current day situation in other jurisdiction such as England, Canada and West Virginia. The following are some of the inadequacies in the Nigeria criminal legislation regarding the offence of rape and the suggestion for a robust legal reformation.
By the Nigeria Laws on rape, the offence is defined in gender sensitive terms as I explained in my previous article on: Male Rape: Myth or Reality? The implication on the foregoing of the Latin phrase Expressio Unius Est Exclusion Alterius, which means that the express mention of one person, thing or consequence implies the exclusion of all others; and Expressium Facit Cessare Tacitum which means that what is expressed puts an end to what is implied, is that where a statute or law by its terms is expressly limited to certain matters or persons, an interpretation or construction cannot be extended to others.
This is not realistic as it is not true representation of the present situation in Nigeria. At the moment we have lesbians who are women that take pleasure in having sexual intercourse with fellow women. Also, there are gay who are men that normally have sexual intrusion of fellow men. In our society, there abound many perverts who are in secret cults and who derive pleasures in having sex against the order of nature. Should these group of persons actually have unlawful carnal knowledge of their kind or sex without the consent of the victim; can we prosecute such offender for the crime of rape? The answer is NO! It is hereby suggested that the laws be reviewed to be gender neutral as is the case in the United States of America and Canada.
Also, the definition of rape includes the capacity and lack of capacity to commit rape. Certain people are exempted by law from having the capacity to commit the act. These persons include a husband and his wife; children under the age of 12years and impotent persons; who cannot commit rape. There is also the issue whether a man can be raped by a woman.
Following the amendment of the laws of England and other European countries which now make liable for husband to rape his wife, coupled with the global trend in the agitation of women to have control over and decide freely and responsibly in matters related to sexuality, including sexual and reproductive health, been free from discrimination and violence; there has been repeated calls by some Nigerians for our laws which exempts husband from raping their wives to be reformed.
In England, after several attempts at evading the strict adherence to women’s rights, finally gave up the regime of immunities in 1962 by the Law Reform 9 (Husband and Wife) Act, which gave spouse a right of action against the other as though they were never married. Judicial support on this score came to the fore with the cases of Reg V. C (1991)1 ALL ER 755 at 755 and Regina V R (1992) 1 A.C 599 at 610.
Today, marriage is a partnership of equals. Under this arrangement, without a doubt, there will be no superior partner; neither will there be any occasion for imposition of non–consensual intercourse on any parties. It was becoming clear (especially in England) that it was no longer possible to employ the theory of non –intrusion to oust the criminal prosecution of the offences committed within the confines of marriage. For example, in R v. Kowalski (1998) 8 CR.APP.R 339, a husband was convicted for indecent assault on his wife, despite his defence of his wife’s previous consent.
The net effect of the above is that, as of now, equal treatment, irrespective of sex, has emerged as a legal concept of global acceptance. Biased public policy that sought to advocate for the non intrusion of the criminal law into domestic sphere has collapsed. Under plethora of successful prosecution of even minor offences committed in the home, where marital and filial bonds have succeeded to bar the prosecutor of such offenders.
It is therefore suggested that in line with global developments, marital or spousal immunity to victim must not be included in the long list of accepted defences to criminal liability in Nigeria.
To continue to retain the spousal immunity clause contained in section 6 of the criminal code would mean that our laws are not in accord with the current language of equality of spouses. It is therefore suggested that a new clause should be inserted into the criminal code to clarify the position of husband and wife, which if it becomes necessary, such clause will simply make any spouse liable for rape, notwithstanding the marital connection. However, this does not imply that force should be used by the husband in ascertaining his right; rather it is absolutely necessary that the sincere feelings of each partner should be considered always in the issue of sex.
Non liability of a male person under the age of 12years of age is provided for in the third paragraph of section 30 of the criminal code and is an irrebutable presumption of law no matter the evidence adduced to the contrary. This presumption must have been informed to the traditional notion of rape as only and violent act of force. Therefore, it is unimaginable that a male person under the age 12years could not coarse a woman into consensual carnal connection. Such irrationality can be rebutted these days with the present level of development and the rascality in the society.
The present view is that rape can be committed without the use of force. In R V Larter, it was held that a male person under the age of 12years can have erection; therefore he can penetrate at least an infant girl. If that happens and a charge is brought under rape or defilement, it will be unjust to absolve the accused especially where the victim is of a tender age.
It is necessary therefore that the third paragraph of section 30 be deleted. In a case of rape or defilement involving a male person under the age of twelve, the size and the mental capacity of the boy as provided by the second paragraph of the same section 30 should be the determining factor for liability. It should be noted that the penal code has no age limit of 12years, and it is suggested that the criminal code, works in that alteration. In addition to the foregoing, our law provides that only girls below sixteen and above thirteen can be defiled. It is recommended that young boys of the same age be included in this age bracket, as boys are also victims of rape.
Therefore, the Legislature needs to look more thoroughly into the various sections creating these offences and enact more laws to give flesh to the bare bones of the initial ones.
Isaac Opatewa, a legal practitioner, writes from Lagos.