By Taiwo Alabi Esq.
I was asked sometimes last year during my NYSC scheme, to explain the legality of rape in Nigeria as well as give a legal view to it, on a virtual group I belong to, because of the increasing index of rape in the country. Then, I penned this down. I hope it’s worth your while.
Introduction
The Nigerian Justice System comprise of different sets of laws and regulations. Nonetheless, opinions, legislative papers, laws of international communities – treatises, wield great influence on it. A brief look into the history of the Nigerian judicial system will inform us that it is a copy of the British system with little improvements thereto. The criminal justice system forms the bulk of the Nigerian justice system because of the numerous crimes perpetrated all over the country. Despite that, it promulgated laws to tackle the spread of crimes in Nigeria, yet, the decimals of crime increases daily.
Definition of Rape
Rape is an unlawful sexual intercourse between a man and a woman, vice versa, without the consent of the victim. Rape can occur even without the intervention of the human genitals. We’ll see some ways rape can happen in this paper.
Legal Framework on Rape
Nigeria is one indivisible Nation which has its establishing law codified as the Constitution of the Federal Republic of Nigeria. Every sector in the country has an establishing law which punishes the breach of it. Different crimes loom large in the country, one of which is RAPE. Apparently, Nigeria of the countries with rape incidences in the world. The continuing occurrence of this crime necessitates the federal government to promulgate some laws to meet the offence of rape in the country.
Some of the laws that curtail the offence of rape are; The 1999 Constitution of the Federal Republic of Nigeria (as amended), Criminal Code Act, Penal Code, Violence Against Persons (Prohibition) Act, 2015, Administration of Criminal Justice Law of various states. Short examination of these laws as they prohibit and penalizes the offence of rape in Nigeria, will be discussed below.
- The 1999 Constitution of the Federal Republic of Nigeria (as amended)
The 1999 Constitution of the Federal Republic of Nigeria (as amended) is known as the grundnorm from which other norms and laws derogates from and finds existence. Its provisions provide for the sanctity of life of Nigerians. S. 34 of the constitution provides that every human has a right to dignity of his person and shall not be subjected to any inhumane or degrading treatment or torture. This means that every person, both male and female has the right to be treated fairly without any form of abuse. A rape victim is subjected to degrading and inhumane treatment at the point of rape and subsequently put in perpetual psychological, emotional and health torture. S. 33 of the Constitution provides that every citizen of the country has the right to life and shall no be taken from him. The offence of rape can culminate in the death of the rape victims, either during the act or after the incident. Such death amounts to murder. Murder also can occur owing to the grievous bodily harm – rape – inflicted on the victim.
- Violence Against Persons (Prohibition) Act, 2015
Furthermore, the Violence Against Persons (Prohibition) Act, 2015 also known as the VAPP Act, was promulgated to curb violence against persons. Among the offences that the VAPP Act penalizes is the offence of Rape. The Act defines Rape as any intentional penetration into any part of the human body whether through the vagina, anus, mouth of another person with any part of his or her body or anything else without consent or where such 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 addictive capable of taking away the will of such person or in the case of a married person, by impersonating him or her spouse[1]. This Act widened its horizon to cover several ways in which rape can occur and it adequately gave appropriate punitive measures to curb this rampaging menace.
It is noteworthy here that both sexes can be subjected to rape. More so, this evinced different ways through which rape can occur. It can occur by penetrating: the vagina, anus, mouth and any part of the body by anything else which can be a dildo, a rod or fingers or anything else.
More so, the Act envisages that a malicious prosecution can be instituted against another. That is, an action that is driven by malice. The Act forbids anyone to produce any false statement incriminating another person or any institution maliciously[2]. Such persons found guilty will be sentenced to a jail term not exceeding 12 months or pay a fine of #200,000.00 only[3]. The Act also provides for a grave punitive punishment to any rapist, where such persons have been convicted for more than one sexual offence. Such persons will be declared by the court as a dangerous sexual offender[4]. Also, anyone convicted for any sexual offence has their name on the Sexual Offenders Record and should the provisions of this law and any other law clash, the provisions of the law supersede any other law[5].
- Criminal Code Act.
The Criminal Code Act which covers the Southern part of Nigeria and prohibits the act of Rape. It explains that any person who has unlawful carnal knowledge of a woman or girl without her consent or with her consent if it’s obtained by force or threat or intimidation of any kind or by fear of harm, or by means of false or fraudulent representation as to the husband of the victim, or in the case of a married woman by personating her husband, is guilty of an offence which is called rape[6].
The Criminal Code also identified various degrees that can lead to rape, which are: unlawful carnal knowledge without consent, consent gotten by force, consent by threat, consent gotten by intimidation, consent gotten by fear of harm, false representation of the husband of a married woman.
This Act recognizes that only female can be raped, which the VAPP Act improved upon that both sexes can be subject of Rape. Such act of rape is punished with life imprisonment. An attempted rape is also punishable with an imprisonment for 14 years with(out) canning[7]. It is worthy of note that it is immaterial if the offender thinks that the girl is above sixteen years old or he was given consent or was the lady’s suggestion.
- Penal Code Act.
The Penal Code Act which covers the Northern Part of the country and prohibits the offence of rape as well as punishes it with an imprisonment for life or any lesser sentence[8]. Meanwhile, the age limit of a person for an offence of rape to succeed even if consent is gotten is fourteen years old as opposed to the sixteen years in the Criminal Code Act.
Protection of Rape Victims.
The VAPP Act gave some measures to protect the victims of rape which are as follows:
- availability to psychological, social and legal assistance by accredited service providers – governmental and non-governmental agencies. This is in furtherance of the victims’ right to life.
- Such victims have access to rehabilitation and integration program[9].
Also, if the matter be brought to the court, it will be held in camera and the court prohibits the discharge of certain information released during the trial, this is ensured to protect the dignity of the victims[10].
The victim is also issued a Protection Order – it is a document signed by the judge that restrains further act against the victim[11]. How effective it is calls for the enforcement of the law.
Differences between the laws
- The VAPP Act provides for different ways through which rape can occur. But the Penal Code and Criminal Code only covers penetration by the man to the woman.
- The VAPP Act provides that both sexes can be subject of rape. But the Penal and Criminal codes only imply that the female gender can be raped.
- The age limit for a person where rape can suffice even if consent is voluntarily given is sixteen years in the Criminal Code while fourteen years in the Penal Code.
- The VAPP Act provides for the protection of the victims but the Criminal Code and the Penal Code did not fully provide for the protection of a victims.
- The jail term for the punishment of rape is life imprisonment for the Criminal Code while it’s life imprisonment or less for the Penal Code.
Elements of Rape
Therefore, from the above premises, it is necessary to spell out some elements of rape, which are:
- Unlawful carnal knowledge of the victim;
- There must be Penetration, no matter how slight it is;
- There must be proof of such penetration;
- Consent was not gotten or was ill gotten or was gotten through fear of threat, intimidation or was gotten by fraudulent representation of the victim’s spouse;
- Consent of a child below sixteen or fourteen years amounts to rape, even if it is the lady that suggests the idea.
- It was the accused that committed the offence[12].
Upon the establishment of these elements, the evidence of the victim must be corroborated with other evidence to grant conviction, see Akpanefe v. The State (1969) 1 All NLR 420[13].
Attendant matters on the offence of Rape.
- Withdrawal of Consent
It has been held by various courts that where consent was gotten ab initio, but was later withdrawn during intercourse, any further act of penetration will amount to rape. Moreover, during foreplay and one of the parties withdraws consent, when the other has reached orgasm, any further act of penetration will amount to rape. However, the penal laws in Nigeria did not explain what consent is and when it can be withdrawn. However, the Sexual Offences Act of the United Kingdom by section 75 and 76, penalizes the further of penetration where consent is withdrawn. In the case of People v John Z, where the Supreme Court of California held that where a partner gave her consent initially, this does not presupposes that she has given up her right of withdrawal, she can withdraw her consent during the intercourse and any further act of penetration will amount to rape[14].
- Spousal Rape
Also, it is interesting to know that in Nigeria currently, the law does not support spousal rape, the man and woman are presumed as one person in law[15]. However, spousal rape can occur where –
- either of the parties have sought for a court order to live separately from the home. This is the decree of judicial separation[16]. The parties are not divorced but live separately from each other. Any intercourse without consent amounts to rape.
- there is a divorce nisi order[17], rape can be actionable thereby[18]. However, where there is a pending divorce suit in court or the order has not been granted, non consensual sex may not revoke the earlier consent given due to the marriage oath and may not amount to rape.
- the court has issued out an order to prohibit molestation by the man[19].
Therefore, from the foregoing, it is expedient to know that there are other laws that prohibit the offence, such as the Child Rights Act and other laws domesticated in various states of the federation. Should any fall victim to this menace, they are advised to visit the nearby hospital with the cloth worn during such dastardly act. However, the time limit for the prosecution of this offence is determined by the response of the complainant, the availability of evidence, the number of cases such designated courts has, the effective investigation by the prosecution.
Recommendation
Hence, it is recommended that there should special courts created to attend to rape and other related matters. This ensures quick dispensation of justice, saves time, reduces psychological torture the victim is exposed to during the trial. Therefore, everyone has the responsibility to be safe and to protect oneself, feel free to seek medical attention, call for security if need be, because justice is not only to the victim but also to the state and society.
Conclusion
In conclusion, despite the prevalence of the offence of rape in the country, the legislative houses have promulgated laws to curb the further spread of the menace in the country. These laws do not favour a gender to another, it covers both. We all have the responsibility to stop the act of rape. Stop the thoughts and stop the act.
Taiwo is an Associate with Abegunde & Abegunde Chambers, Ado Ekiti.
This publication is not a substitute for legal consultancy, should you need further clarifications and legal aid, kindly message him via taiwoalabi06@gmail.com; 07061115452 – WhatsApp contact.
[1] https://lawpavilion.com/blog/the-violence-against-persons-prohibition-act-2015/
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Section 357 of the Criminal Code Act.
[7] Section 358 of the Criminal Code Act.
[8] Section 282 of the Penal Code Act.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Nnamani Ogbonna, https://businessday.ng/opinion/article/rape-ppunder-nigeria-law/amp/
[13] Ibid.
[14] https://supreme.findlaw.com/legal-commentary/withdrawing-consent-during-intercourse.html
[15] See Hyde v Hyde {L.R.} 1 P. & D. 130, where the court presumed that the man and woman are one.
[16] O.C. Emeka and C.T. Emejuru, Donnish Journal of Law and Conflict Resolution vol 1(1) pp. 001-009 April, 2015, p. 004; https://www.researchgate.net/publication/275153267_An_Appraisal_of_the_Jurisprudence_of_Spousal_Rape_in_Nigeria
[17] Ibid.
[18] See R v Clark [1949] 2 All ER 449; R v Miller [1954] 2 All ER 529.
[19] Ibid.