Why The Heat, Can A Man Be R*ped Under Our Nigerian Laws? By Chidera Nwokeke

Series of arguments abound and this has caused much heat as to whether a man can be raped under our current Nigerian Laws.  A perusal of this complex topic which is not novel will shade light as to what is Rape?  What the Prosecution needs to proof to secure conviction for the offence of rape? In the course of this discuss,  it will be pertinent to ascertain if there is any law in Nigeria that states that a man can be raped and the punishment available where a man is raped.

In the case of BENJAMIN v. STATE (2016) LPELR-CA/C/86C/2016– Section 357 of the Criminal Code Act Cap. C.38, Laws of the Federation of Nigeria , 2004 defines Rape thus: “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 or harm, or by means or 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.

 In the case of IDI v. STATE(2017) LPELR-SC.363/2015– The Supreme held that 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 impersonation (c) That the prosecutrix 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.

In plethora of cases particularly the case of POSU vs. The STATE(2010) LPELR-CA/I/180/2009– To prove penetration, the Court has warned about the undesirability of relying solely on the uncorroborated evidence of the prosecutrix and that some other independent evidence is required to prove penetration. In the case of ISA v. KANO STATE(2016) LPELR-SC.35/2013- The Supreme Court held that in proof of penetration, the law is trite that partial or incomplete penetration is sufficient proof of the offence of rape. The important and essential ingredient of the offence of rape is penetration. Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. Emission is not a necessary requirement. Any or even the slightest penetration will be sufficient to constitute the act of intercourse. Thus, where penetration is proved but not of such a depth as to injure the hymen, it will be sufficient to constitute the crime of rape. Therefore, proof of the rupture of hymen is unnecessary to establish the offence of rape.

In the case of RABIU v. THE STATE(2004) LPELR-CA/A/6/C/2004– For a conviction to stand where the accused person is alleged to have committed an offence of rape, the law places the burden of proof on the prosecution and it never shifts. Section 138 of the Evidence Act.

The court has held that it is the law that before the prosecution can secure conviction for the offence of rape, the evidence of the prosecuting (the victim of the rape) must be corroborated in some material particular that sexual intercourse did take place and that it was without her consent. It was also held that a piece of evidence offered as corroboration for the offence of rape must be (a) cogent, compelling, and unequivocal as to show without more that the accused committed the offence charged; (b) an independent evidence which connects the accused with the offence charged; and (c) evidence that implicates the accused in the commission of the offence charged. See UPAHAR v. STATE (2003) 6 NWLR (Pt. 816) 230

Corroboration in respect of the offence of rape is evidence which tends to show that the story of the prosecutrix that the accused committed the crime is true.Such evidence need not to be direct.  Although corroboration is not essential to secure conviction in an offence of rape and the evidence of a sole witness, in this case the prosecutrix, is cogent, strong and credible would suffice; nevertheless it is desirable that such evidence be corroborated in order to confirm in some material particulars, not only that the offence has been committed but that it was the accused who committed it–OFORDIKE v. STATE (2019) LPELR-SC.695/2016.

In the case of POPOOLA V. STATE(2013) LPELR-SC.375/2011–The mandatoriness of medical report would only be relevant if there was denial of the offence by the accused, which the circumstances prevailing having not supported. Also, it cannot be correct that once there is denial of the offence by an accused, no other corroborative evidence would suffice. This is because each case must be considered on its own peculiar facts and circumstances as it is not the law that once there is a denial without medical report, the Prosecution fails. What is required is that once denial is at play the Court is encouraged to look for a medical report showing injury to the private part of the Prosecutrix or any other part of her body. See IKO v THE STATE (2001) SCNJ 39. In the case in hand, where there is no medical report but the confessional statement of the Appellant is direct, cogent, positive and in fact lends strong support to the evidence of the Prosecutrix. It stands to reason therefore that the corroboration desired is in place and the requirement of the law complied with.

Male rape was first recognized under English law in 1994 when the definition of rape was revised so as to include non-consensual, penile-anal intercourse of a woman or a man.In 2015, the Nigerian National Assembly passed the VIOLENCE AGAINST PERSON (PROHIBITION) ACT hereinafter known as VAPP. The VAPP is only applicable in the FCT, Abuja as stated in Section 27-“Only the High Court of the Federal Capital Territory, Abuja empowered by an Act of Parliament shall have the jurisdiction to hear and grant any application brought under this Act”. This is because even though it was made by the National Assembly, it was only made applicable in the FCT, and only the High Courts of the FCT have the jurisdiction over crimes created in the VAPP. This is the only Nigeria legislation that tends to protect the male gender from the ruthless offence of rape and it also provides that a man can be raped.

Definition of Rape under VIOLENCE AGAINST PERSONS (PROHIBITION) ACT, 2015

1. (1) A person commits the offence of rape if-

(a) he or she intentionally penetrates the vagina, anus or mouth of another person with any other 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.

Under VAPP,  it is the duty of the prosecution to prove the following before conviction can be secured – (a) That the accused penetrated the prosecutrix (b) That the act of penetration was done without his or her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit, intoxication or impersonation (c) That the penetration was done with any other part of the body or anything else (d) That the accused had the mens rea, the intention to penetrate the prosecutrix without his or her consent (e) That there was penetration of the vagina, anus or mouth.

Prior to this law, only women could be ‘raped’ in the legal definition of the word. However, this Law now provides that MEN can be raped by women or fellow men– The VAPP is the first piece of legislation in Nigeria which recognises that men are capable of being raped. All previous laws only define the offence in relation to women. In the definition of rape in other criminal statutes, reference is made to penetration of the vagina, and because only women have vagina.

The Act in Subsection 1(a) states that the instrument of rape does not have to be a penis, it can be another part of the body e.g. hand, or an object e.g. dildo or even objects like pens, pencils etc. The other laws that deal with rape specify that a penis must have vaginal penetration whether slight, partial or full for it to be the offence of rape. It is barefaced that the Violence Against Person (Prohibition) Act is focusing on the violation of the person’s body when viewing the act of rape, and not a strict view of the fact that for it to be rape there must be ‘Sex’.

PUNISHMENT FOR THE OFFENCE OF RAPE

(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 imprisonment;

(b) in all other cases, to a minimum of 12 years imprisonment without an option of fine; or

(c) in the case of rape by a group of persons, the offenders are liable jointly 10 a minimum of 20 years imprisonment without an option of fine.

(3) The Court shall also award appropriate compensation to the victim as it may deem fit in the circumstance.

In other legislations like the Criminal Code, the law provides for a maximum penalty. Section 358 of Criminal Code “Any Person who commits the offence of rape is liable to imprisonment for life with or without caning”.  The VAPP gave room for discretion in some circumstances, it states that once the crime of rape is proven, the offender must be sentenced to  life imprisonment except in circumstances outlined in Subsection 2 (a)-(c) above.

The Act in Subsection 3 also recognises the rights of the victim to financial compensation.

In summary, a principle of criminal law is, surely, that all persons should be protected equally from harm of like degree.This simply means that the male and female gender should be protected by the law from rape. The VAPP is very pivotal in that victims of lesbianism and gay also can maintain an action for rape. In other rape laws, only vaginal penetration could be classified as ‘rape’. This Act states that unlawful anal or oral sex can be rape. I am of the opinion that Men can be raped following the provisions of VAPP as stated above and I therefore call for a reform of other rape laws to include that Men can be raped so that our Men who suffers emotional and psychological trauma as a result being victims of rape and base outside Abuja can maintain action against this evil perpetrators.

Chidera Nwokeke (500 Level Law Student Of Ebonyi State University)(Email: Nwokekechidera@Gmail.Com, Phone: 08120945787)