One of the major challenges facing laws in Nigeria is not its inexistence but rather the lack of awareness as regards its existence. Laws exist to regulate the activities of individuals in a certain community, society or state. According to the positivist school of thought as propounded by John Austin, laws are obeyed because of the fear of sanction. What happens when Mr A does not know that a law exists to regulate his activities with Mr B? He will definitely act as he pleases which might be contrary to the law. Hence the purpose for which such a law is enacted might be defeated, when the individuals the law is meant to bind do not even know of its existence or what it tends to protect or enforce. This is the cobweb entrapping laws like; National Health Act 2014, Army Colour (Prohibition of use) Act, Cybercrimes (prohibition, prevention, etc) Act, 2015 and so on.
COMBING THE STRANDS OF SECTION 23(3) OF THE CYBER CRIMES ACT
On the Cyber-crimes Act, I wrote an article titled “Unpopular Cyber Crime Provision; A Slippery Ground to the Ignorant” (see link:) https://thenigerialawyer.com/sending-porographic-contents-through-computer-without-recievers-consent-is-a-crime-by-samuel-omotoso where I analyzed section 24 of the Act, pointing out the fact that sending a grossly offensive or pornographic picture could land a person into trouble worth N7,000,000 (Seven million naira) or three years imprisonment or both.
This article will focus on a rather sensitive and technical provision of the same Cyber Crime Act. The paramount question this article seeks to address is;
What are the legal implications (if any) of having carnal knowledge with a child less than 18 years of age?. Sex with a person less than 18 is now common occurrence; we do not need to carry out statistics to realize the high rate of sex between adolescents or between adults and adolescents. Before we delve into the depth of section 23 of the aforementioned Act, particularly sub 3 , it is expedient to put the horse before the cart by stating the provisions of Section 23(3)(5) of the Cybercrimes (prohibition, prevention, etc) act, 2015
“Section 23(3) states that – Any person who intentionally proposes, grooms or solicits, through any computer system or network, to meet a child for the purpose of:
- Engaging in sexual activities with the child;
- Engaging in sexual activities with the child where-
- Use is made of coercion, inducement, force or threats;
- Abuse is made of a recognized position of trust, authority or influence over the child, including within the family; or
- Abuse is made of a particularly vulnerable situation of the child, metal or physical disability or a situation of dependence;
- Recruiting, inducing, coercing, exposing, or causing a child to participate in pornographic performances or profiting from or otherwise exploiting a child for such purposes;
Commits an offence under this Act and shall be liable on conviction-
- In the case of paragraphs (a) to imprisonment for a term of not more than 10 years and or a fine of not more than N15,000,000 or both fine and imprisonment and
- In the case of paragraphs (b) and (c) of this subsection, to imprisonment for a term of not more than 15 years or a fine of not more than N25,000,000 or both fine and imprisonment.
(5) For the purpose of this section, the term “child” or “minor” means a person below 18 years of age.” “Through any computer system or network” includes but is not limited to; Mobile smart phones, Ipad, Tablets, Laptops and so on.
For the purpose of demystifying this provision, I will explain the provision in inverted comas in three paragraphs-
- Section 23(3)a Enunciates that when a person through any computer system or network intentionally arranges or set up a meeting with a person under the age of 18 (eighteen)years to have carnal knowledge (sex of any kind) commits an offence under this Act and shall be liable on conviction to imprisonment for a term of not more than 10 (Ten) years and or a fine of not more than N15,000,000 (Fifteen Million Naira) or both.
- Section 23(3)b Enunciates that where a person through any computer system or network intentionally arranges or set up a meeting with a person under the age of 18 (eighteen) years after obtaining his or her consent through fraud, enticement, false promises, luring, force or threats –OR- taking advantage of a position of trust or using any sort of influence including but not limited to family ties, employment or any fiduciary relationship –OR- taking advantage of the physical and mental disability of a person under the age of 18 (eighteen)years for the purpose of having carnal knowledge (sex of any kind) shall be liable on conviction to imprisonment for a term of not more than 15 years or a fine of not more than N25,000,000 or both.
- Section 23(3)c Enunciates that any person who through any computer system or network for the purpose of making profit or for any similar purpose; induce, force, coarse a person under the age of 18 (eighteen) years to participate in pornographic performances shall be liable on conviction to imprisonment for a term of not more than 15 years or a fine of not more than N25,000,000 or both.
It is expedient to also state that the consent of the child is this instance will not even suffice as a defence in law. This is due to the fact that it is trite in law that a child cannot give consent because, it is believed that a child (a person below the age of 18 years) does not understand the import of consent. To cap it up, it is immaterial if the offender believed the person to be of or above the age of eighteen years. See: Section 31(3)(a) Child’s Rights Act 2003.
A person might ask that; would it be correct to say that where a person communicates via Mobile smart phones, Ipad, Tablets, Laptops and so on to meet with a person under the age of 18 (eighteen) years to have carnal knowledge (sex of any kind). Will such a person be guilty under the provision of section 23 of the Cyber Crimes Act? The answer is YES.
A person might also ask that; would it be correct to say that engaging in pornographic activities via Mobile smart phones, Ipad, Tablets, Laptops and so on with a person under the age of 18 (eighteen) years is an offence under the provision of section 23 of the Cyber Crimes Act? The answer is YES
You probably did not know that there is a legal implication of having a sexual relationship with a person below the age of 18 years, now you do. So when next you want to engage in “certain” activities with anyone, you can start by asking for his/her age. A simple question like “how old are you?” might save you from a 15 years long vacation to prison or a non-refundable fee of N25,000,000(Twenty Five Million Naira). Remembering the popular quote about a word been enough for the wise will be the perfect way to end this article.
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