Section 357 of the criminal code states that “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 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, is guilty of an offence which is called rape.” Section 6 of the same criminal code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife, and the offence is complete upon penetration. The lack of consent forms the kernel or nucleus of the offence of rape and evidence of some struggle or resistance by the victim may be proof of lack of consent. The proper interpretation of section 6 of our criminal code is that marital rape is not an offence in Nigeria. Marital rape is where a husband has sexual intercourse with his wife by force or without her consent. In some jurisdiction a husband can be prosecuted for raping his wife. In Norway, Sweden ,Denmark. Finland ,Queensland, Australia and some states in America a husband can be prosecuted for marital rape also called spousal rape. But this is not the case in Nigeria. The reason for this position is that it is assumed that at marriage, there is an implied consent to intercourse with the husband, revocable only by court order or an agreement to separate. This she cannot just retract. It is irrevocable and unqualified. William Blackstone wrote, in his commentaries on the laws of England, that “ by marriage, the husband and wife are one person in law, that is the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated into that of the husband under whose wings, protection and cover she performs.” Sir Matthew Hale, a great exponent of spousal sexual immunity said “But the husband cannot be guilty of rape committed himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife had given up herself in this kind unto her husband which she cannot retract.” This view point say there is an ongoing consent once the marriage is subsisting. In Rex V. Clerk (1994)2 All ER 488 the court held that even when a divorce petition was pending, the husband cannot be guilty of rape of his wife as long as the petition had not matured to a stage of decree Nisi. These are the common law position which found its way into our laws by virtue of colonial affinity between Nigeria and England. However even at that, there appears to be some limits to the immunity to marital rape. If the marriage has been dissolved, or if a competent court has made a separating order with a clause that wife is no longer compelled to cohabit with her husband, then the presumed consent of the wife is revoked and rape will ensure if the husband haves intercourse without her consent. Though a man cannot rape his wife but if he uses force or violence to exercise his conjugal right of sexual intercourse, he may be guilty of assault or wounding. In Alausa V. Odusote 1941 WACA p.140 the court held that if a husband uses force or violence to obtain intercourse, he may be guilty of assault or wounding, though the full force of law will not be meted to him. The advocates on the other side of the marital rape divide say that rape is rape and that the rapist should be punished no matter the circumstances under which the act is perpetrated. They say that the law is dynamic and evolves, so that the views held by Sir Mathew Hale in the 17th century should not be relevant in this present age. They argue that consent should not be “presumed” or “irrevocable” but must be actual and true. According to Professor Colb, the harm of rape is in forcibly depriving a person of her right of bodily integrity. It is arguable that section 6 of the criminal code is inconsistent with the provisions of section 34 of the 1999 constitution ( as amended) which guarantees the right to dignity of human persons and under section 1 of that constitution is null and void to the extent of its inconsistency, the constitution being the supreme law of the land. However, In the absence of any judicial pronouncement on this, it is the position that marital rape is not a part of our law in Nigeria. Ben Ijeoma Adigwe Esq.. Director, Ministry of justice, Asaba, Delta State. www: benadigwe.com ]]>
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