On May 25th, 2015 the past President of Nigeria, Dr. Goodluck Ebele Jonathan recorded a milestone when he signed into law the Violence Against Person (Prohibition) Act 2015, bringing to a successful conclusion the long awaited social and legislative advocacy championed by women’s group and gender activist towards the passage of the law that will indeed protect the girl child and women from all sort of abuses.
This work seek to ascertain the legal position of the offence of rape, taking into account the various legislative enactments in Nigeria particularly the Violence Against Person’s (Prohibition) Act 2015 vis-a-vis other legislations such as the Penal Code, Criminal Code, Child Right Act, Evidence Act and Decided Cases by taking a look at the legal framework of the offence of rape and its punishment. This work sets out recommendation and suggestions on legislative drafting to be couched in a way the offence of rape will meet up with modern day sexual gratifications without leaving any lacuna and or saving clause for the offenders of rape. It undertakes a critical appraisal of the offence of rape under the Violence Against Persons (Prohibition) Act.
Each year, millions of people are raped or otherwise, sexually abused. Research has shown that young people are prime target. The offence of rape means different things to different people and many have argued as to what the offence entails. The offence however cannot be disputed that it is an occurring event in society. Beforehand, the offence of rape did not enjoy this much attention it is enjoying now, this is because the media does not report the offence of the crime because of the concomitant social stigma attached to the crime.
However, by the Police Records cases of Crime Against Persons, the offence of Rape/Indecent Assault is the third highest offence in Nigeria just after the offence of Assault and grievous bodily harm respectively from 1993 – 2003 with the highest number of recorded cases in 1997. An alarming 2,585 cases being reported that year alone despite the fact that victims of rape cases are reluctant to open up on what they have gone through. There is no gainsaying that the offence of rape has become a reoccurring social problem as well as a legal one.
Rape in Nigeria is on the increase; yet many disquieting issues in our social and political life dominate the front burner of our national dailies – the various corruption scandals, crude oil theft, religious and sectarian violence, kidnappings, electional saga, government policies, etc – most people tend to forget or ignore this horrendous issue that has and is still ruining many lives, dreams, and devastating many homes.
Indeed, with the many reportage on a daily basis about rape cases in social media, it is undisputed that there is a steady increase of this social malady in contemporary Nigeria. This rising incidence has become very alarming and worrying. All over the country, there is a new kind of unheralded harvests of rape case and rapist. The proliferating case of rape in Nigeria remains unfathomable especially now that minors are not spared from its cruel act and there is an increase in novel ways of sexual gratification. This has led our legislators to enact laws to meet up with the modern realities of our time.
LEGAL FRAMEWORK OF THE OFFENCE OF RAPE
The four letter words RAPE is a form of sexual violence. It is violence perpetrated by the use of threat, intimidation and the use of sexual violence. In discussing the offence of rape, particular reference will be paid to relevant sections of the criminal code, the Penal Code, the Child Rights Act and the Violence Against Person’s (Protection) Act 2015.
The offence of rape is provided for in Section 357 of the Criminal Code, which defines rape 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 force or by means of threat or intimidation of any kind, or by fear of harm, or by means of false and fraudulent misrepresentation 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”.
Furthermore, Section 6 states that:
“When the term “carnal knowledge” or the term “carnal connection” is used in defining an offence called, it is implied that the offence, so far as regards that element of it is complete upon penetration”.
The second limb of the aforementioned section goes on to state that:
“Unlawful carnal knowledge” means carnal connection which takes place than between husband and wife”.
It is worthy to note that the provision of the Criminal Code is applicable to the Southern States of Nigeria.
Section 282 of the Penal Codes states that:
(1) “A man is said to commit rape who, except in the case referred to in subsection (2) of this section has sexual intercourse with a woman in any of the following circumstances –
(a) Against her will;
(b) Without her consent, with her consent, when her consent is obtained by putting her in fear of death or hurt;
(c) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawful married;
(d) With or without her consent, when she is under fourteen years of age or of unsound mind.
“Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.”
The Child Rights Act under the heading “‘Unlawful Sexual Intercourse” provides in Section 31 that:
(1) No person shall have sexual, intercourse with a child.
(2) A person who contravenes the provisions of subsection (1) of this section commits the offence of rape and is liable on conviction to imprisonment for life.
(3) Where a person is charged with an offence under this section it is immaterial that:
(a) The offender believes the person to be of or above the age of eighteen years, or
(b) The sexual intercourse was with the consent of the child.
From the foregoing statutory definitions of rape, it is apposite to state that by virtue of Sections 357, 16, 30 and 368 of the Criminal Code and Section 282 of the Penal Code as well as Section 31 of the Child Right Act, rape is complete where a person above 12 years, have sexual intercourse with a woman, without her consent or a girl of immature age or unsound mind with her consent, will be guilty of rape.
Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife it is complete upon penetration. Punishment for rape and attempted rape is life imprisonment and fourteen years imprisonment respectively, with or without canning. Non-consent to sexual relations has been defined to include the absence of consent or inability of the victim to indicate assent or dissent or if consent was obtained by means of fraud as to the nature of the act. According to the learned scion of Dr. Aniedi Ikpang, “every consent is a submission, but not every submission is a consent”.
Section 30 of the Criminal Code provides “A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.” He can only be convicted for indecent assault not rape.
The foregoing are what the prosecutor needs to prove for him to succeed in an action for rape.
A CRITICAL APPRAISAL OF THE VIOLENCE AGAINST PERSON (PROHIBITION) ACT 2015
With the introduction of the Violence Against Person (Prohibition) Act 2015, the traditional definitions and elements of rape has come under threat in an attempt to expand the frontiers of the offence of rape, to cover novel ways and methods of sexual gratifications. In discussing the offence of rape under this Act, particular reference will be paid to be provisions of Section 1 and 26 of the Act.
Section 1 provides thus:
(1) A person commit the offence of rape if –
(a) He or she intentionally penetrates the vagina, anus or mouth of another person with any part of his or her body or anything else;
(b) The other person does not consent to the penetration; or
(c) 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.
(2) A person convicted of an offence under subsection (1) of this section is liable to imprisonment for life except:
(a) Where the offender is less than 14 years of age, the offender is liable to a maximum of 14 years of imprisonment.
(b) In all other cases, to a minimum of 12 years imprisonment.
(c) In the case of rape by a group of persons, the offenders are liable jointly to a minimum of 20 years imprisonment without an option to pay fine.
(3) The court shall award appropriate compensation to the victim as it may deem fit in the circumstance.
(4) A register for convicted sexual offender shall be maintained and accessible to the public.
Section 26 of the Act goes on to provide for an offence of indecent exposure. The section provides thus:
(1) A person who intentionally exposes his or her genital organs, or a substantial part thereof, with the intention of causing distress to the other party or that another person seeing it may be tempted or induced to commit an offence under this Act, commits an offence termed “indecent exposure”.
(2) A person who intentionally exposes his or her genital organs or a substantial part thereof, and induce another to either massage, or touch with the intention of deriving sexual pleasure from such acts, commits an offence under this section.
(3) A person who commits an offence under this section is liable to upon conviction to a term of imprisonment of not less than 1 year or to a five not exceeding N500,000 or both.
The above sections of the Act is reproduced here for clarity sake and to make the critical appraisal stressless without having recourse to make reference to the said section from the hard copy and to make those who do not have a copy of the Act make easy reference.
From the replicated Section 1 above, the following issues have arisen for serious consideration:
(i) A woman is capable of committing the offence of rape.
(ii) The frontiers of what constitute rape have been expanded.
By the spirit and letters of paragraph (C), a new phrase have been included as to what will amount to ‘no-consent’ in the offence of rape and that is ‘the use of any substance or additive capable of taking the will of such person’.
Also, subsection 2 of the above mentioned section, particularly in paragraph (a). The Act has made a person under 14 years of age criminally liable for the offence of rape.
This is against the letters and spirit of Section 30 of the Criminal Code which absolves a male below 12 years of Criminal responsibility of the offence of rape. Also, against Section 50 of the Penal Code which absolves a child under 7 years of age of an offence and child above 7 years of age but below 12 years of age of any Criminal possibility unless it can be proved that such child have sufficient maturity of understanding to appreciate the consequence of his action.
Also, the punishment for a commissioned rape under paragraph (a) of subsection 2 of the Violence Against Person (Protection) Act is against the letters of Section 358 of the Criminal Code and Section 283 of the Penal Code respectively.
From issue (i) above, it is pertinent to ask the question, can a woman be capable of rape? The answer to that question hitherto would be an unequivocal “NO”, because going by the definition of rape in the Criminal Code and Penal Code, only a man can be a defendant to a charge of rape. In law, a woman cannot be said to be capable of committing rape. Apart from that, only the males are equipped to achieve penetration by virtue of section 6 of the Criminal Code. But all the same, a woman can be charged with being an accomplice to rape. See R. V Ram (1893) 17 Cox 609, where a wife was convicted for aiding her husband to rape her maid.
By virtue of Section (i) of the Violence Against Person (Protection) Act on issues i, another question that readily comes to mind is can a man be a victim of rape?
In answering this question, I am guided by the statute in order not to veer into the realms of mere semantics. By the wordings of both the Criminal Code and the Penal Code, only a woman can be a victim of rape. Though, situations were a man was made to submit to sexual intercourse is described as ‘rape’ by the media, in law it only amounts to ‘assault’. The Criminal Code was clear on this when it provided in section 357 that “any person who has unlawful carnal knowledge of a woman or girl…” thereby making the woman the subject of the sexual gratification of a man.
There is a legislative re-echo in the Penal Code when it provides that “a man is said to commit rape… has sexual intercourse with a woman”.
On issue (ii) raised above, under paragraph (a) of subsection (i) of Section 1, which will be restated here that;
(a) he or she intentionally penetrates the vagina, ANUS or MOUTH of ANOTHER PERSON WITH ANY PART OF HIS OR HER BODY OR ANYTHING ELSE. (emphasis mine).
The frontiers as to what readily constitutes rape has been expanded absurdly and become superfluous with a loose meaning. Under the Codes, for an offence of rape to be established, carnal knowledge or sexual intercourse of the woman by the man must be proved State v Ojo (1980) 2 N.CR. 391. It is not necessary for this purpose to prove that the hymen was ruptured or that there has been an emission of semen. The slightest penetration of the penis into the vagina is sufficient. But under the Violence Against Person (Prohibition) Act, intercourse does not only take place upon penetration of the penis in the vagina, it is also done once the ‘anus’ or ‘mouth’ of another person is penetrated with any other part of his or her body or ‘anything else’.
The draftsmen of the Act failed to explain the meaning of the ‘anything else’ thereby leaving the court with the responsibility of perusing through the intentions, of the legislators. The legislators have also abandoned the Act in a precarious situation where it is amenable to criticisms and obscure interpretation by laymen. What do they mean by ‘anything else’?
If I open my mouth yawning and without my consent, B puts a banana or a biscuit in it. Can I maintain an action against B for rape? If the answer is in the positive, it will unavoidably lead to vexatious litigations.
Paragraph (c) of Section 1 (i) is in consonance with the position of law that a sleeping woman can also be raped.
Though, paragraph (b) was tailored alongside the Criminal Justice and Public Order Act of 1994 in the United Kingdom, which defines rape to also include penetration of the anus by the penis. The inclusion of the penetration of the “mouth by any part of his or her body or anything else” has made nonsense of the provisions of that section and it is a show of want of legislative drafting skill on the part of the draftsmen.
SUBSECTION 2 OF SECTION 1 OF VIOLENCE AGAINST PERSON PROTECTION ACT
Subsection 2 (a) of the Act which places liability on offenders below 14 years and no limit as to the minimum years is another provision that has come under the search light of criticism. The question to ask is can a child who is 6 years or below 7 years to a day old baby be guilty of rape?
Under the both Codes, the answer is in the negative. But under the Violence Against Person Protection Act, it is left for the court to determine.
THE CURRENT LEGAL POSITION OF RAPE IN NIGERIA
The position of rape in Nigeria is still the same for Southern States which operates the Criminal Code, without prejudice to other legislations of the states Houses of Assembly of the various states in the region, it also remains the same in the Northern states which operate within the letters of the Penal Code without prejudice to other legislation of the House of Assembly of various states in the North. However, with the coming of the Violence Against Person’s (Prohibition) Act 2015, the legal position of rape in Abuja has changed to the extent which the Act permits. A woman under this act is capable of raping a man. Being an Act of the National Assembly the Act is only applicable in the Federal Capital Territory.
SECTION 26 OF THE VIOLENCE AGAINST PERSON PROTECTION ACT
Section 26 of the Act penalizes indecent exposure. It is a crime to intentionally expose one’s genital organs or a substantial part thereof with the intent to cause distress to another person induce another to either massage, touch, with the intention of deriving sexual pleasure from such acts. It renders a person who commits an offence under the section liable to imprisonment for not more than 1 year or to a fine of N50,000 or both.
It is the opinion of the author that the aforementioned section be amended or expunged from the Act as it will likely set a dangerous precursor for things to come.
The said section has the propensity to aggravate the occurrence of rape cases in the society with its concomitant blame shifting on the victims of rape. Many authors have different view to what the offence entails. It is argued that rape is inevitable and man is a sexual animal and when he is aroused sexually he is restless until he satisfies himself. Those who argue along this line see sex as a spontaneous reaction or reflex action of the man. That when a man is aroused sexually, there is little or no time for him to deliberate before acting. They argue that rape is a violent expression of hatred for women and not of sexual desire for them. Berger in his book “Adams Rib” argued that rape is a form of intra-vagina masturbation, and the woman merely carries the object for the sensory stimulation required. The victim is violently assaulted sexually by the rapist. They see rape as an expression of power, control and dominion. To them, it is a violent crime that is expressed sexually. Contrary to the held myth that rape victim asked for it, they do not enjoy it. It would not be rape if they had consented. The only difference between rape and sexual intercourse that will not amount to rape is ‘consent’ .
According to Susan Bronmiller in her book “Against our Will”, she argued that women are trained to be rape victims. She stressed, “Girl’s get raped. Not boys. Rape is something awful that happens to females and (the suggestion is) unless we watch our step it might become our destiny.”
They also stress that every person has a right to his or her body and as such, can dress however he or she likes. Their argument is strengthened by the fact that it is not only women who dresses ‘respectably’ that gets raped.
To them, rape is more of a psychological problem than a social one and the rapist require counselling and rehabilitation than condemnation as well as the victim requires compassion, care and love in lieu of stigmatization and blame. They claim rape knows no place, race, color or name as it can happen anywhere, any day and anytime. It can even happen to a 2 year old, to a daughter by her father.
The shortcoming of this school is that they have failed to provide the solution to this psychological problem of self control in order to forestall future occurrence.
They also fail to see that their arguments is contradictory. If a woman carries the object and a man is a sexual animal, it is incumbent for the woman to cover herself and not let the man exhibits his animalistic tendency. Like the saying goes, “prevention is better than cure”. This shortcomings has led to another group of thinkers.
This group believes that it is the responsibility of women to prevent rape. They thrive on blame. They tend to shift the blame of the occurrence of rape from the perpetrators to the victim.
They base their theory on the fact that the victims of rape actually wanted the act. They argue that it is impossible for a woman who has not consented or accepted the intercourse to be raped, since between the acceptances of the penis into the vagina, there must be the lubrication of the vagina. It is argued that penetration will be difficult if there is no consent.
Those who think along this line take into cognizance the fact that men are mere mortals and when tempted, tends to lose composure. According to them, women are responsible for the offence of rape. And as such, rape can be avoided by dressing decently and staying indoors. They also take a retrospective look at the victims past sexual history.
However, one major criticism of this school of thought is that it is yet to explain the cause of pedophilia. As not only matured ladies gets raped, but minors also get raped too.
Also, temptation cannot be given as an excuse to commit rape. It is why Society and Law courts takes it upon itself to set the standards of responsibility high in the belief that if they did not, society will degenerate into lawlessness and thus they try to stimulate higher standards of conduct in people. In R. v Dudley (1884) 14 Q.B.D. 273 at 288. Stephens Lord Coleridge laid the following dictum.
“It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgement straight and conduct pure… but a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime”.
On the issue of irresponsible dressing, it is argued that Muslims countries have the highest rape cases in the world.
Again, this school fails to see rape as an expression of hatred. It is truism that the word rape has been a violent offence generally known. It is a life threatening and a life altering violent crime that leaves its victims severely traumatized in its wake. It is a violent storm that cuts its way through the life of its victims and those who love them. Left in its wake are complex feelings of pain anger, fear, guilt, isolation, grief and injustice. Though, a common crime in Nigeria, rape is one of the least talked about. The government needs to start addressing the alarming rate at which girls are being sexually abused. Government needs to holistically address the issue of rape.
RECOMMENDATION AND CONCLUSION
There is this unfolding but rather interesting study of value in this generation. Non-Governmental Organizations needs to amplify the voices of rape victims as they remain one of the most suppressed voice in the country because of the opprobrium rape enforces on it victims. An example is seen in the case which took place in Nigeria, on September, 2011. A video of a Nigerian woman being gang raped emerged on the internet. As the five men took turns raping her, she pleaded to her rapists to kill her. She knew that being raped was not only hurting her physically and psychologically but she knew that her honour will be permanently stained in the eyes of the Nigerian society. It is a sad thing to know that the local authorities tried to dismiss the video. But all thanks to the then Youth Minister, Bolaji Abdullahi, who came forward, calling the police and the University to arrest and prosecute the men in the video.
For someone to post a rape video online speaks volume of how depraved our society has become, and Section 26 of the Violence Against Person Protection Act will only hard nose those unscrupulous elements into teaching ladies who only dresses because they have a right to their body a lesson. Such is an insult on intellect as justification for rape as corrective measures of morality. The idea that a woman deserves to be raped because of what she is or is not putting on ought to trouble sane people. And we wonder why they do not go about raping insane bare buttock women on the street if it is about dressing.
Under the Criminal and the Penal Code, rape is restricted to vagina intercourse. But under the Violence Against Persons (Prohibition) Act 2015, it has been extended to anus or mouth so that men as well as women can be victims of rape. It is the opinion of this writer that the phrase ‘anything else’ should be expunged from section 1 (i) of the Act or modified to clear that section from obscurity, absurdity and ambiguity.
The provision of a court register under section 2(4) of the Act is quite commendable as it will go a long way to help keep criminal records of recidivist rapists.
Though the Penal and Criminal Code have their stated sentencing for rape and attempted rape, the courts however, have applied discretion while sentencing with regards to the circumstances of each case.
In the light of the above, there is need for our society to guard against it and ensure that rape in our society is drastically reduced.
There is need for Section 175(5) of the Evidence Act to be amended. The section states as follows:
“A person shall not be convicted of the offences mentioned in paragraph (b) of subsection (1) of section 51, or in section 218, 221, 223, or 224 of the Criminal Code upon the uncorroborated testimony of one witness”.
Thus, it is difficult to prove rape cases because the act of rape is mostly done surreptitiously.
Furthermore, while police often ridicule and blame rape victims for the violent crime they were subject to, they are thus not professionals in handling rape cases. The judiciary on the other hand cause unnecessary delays with series of adjournment. Justice as important in both the healing of the victim and serving as deterrent to others. So therefore, rape victims should be encouraged to speak up.
I wish to encourage the other state legislature to amend their criminal and penal laws in line with Section 1(i) of the Violence Against Person Protection Act with little modification as, earlier suggested.
Aluzu Ebikebuna Augustine
Faculty of Law
University of Uyo, Uyo.
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