Appraisal of the Offence of Rape Under Nigeria Law
CHAPTER ONE
Objectives of the study
The main objective of the study is to examine the appraisal of the offence of rape under Nigeria law. The following are the specific objectives of the study:
- To examine the causes of the increase in rape in Nigeria
- To assess the punishment for rape.
- To examine means to which rape can be curtailed.
CHAPTER TWO
CONCEPTUAL CLARIFICATION
The Concept of Rape
The word rape derives from the Latin verb “Rapere” which means to seize or take by force. The word generically had no sexual connotation and is still used generically in English. In Roman law, rape was classified as a form of crimen Vis,” crime of assault”[1][2]. Unlike theft or robbery, rape was termed a “public wrong” as opposed to a “private wrong”. It is a “forced unwanted sexual intercourse; it is also sometimes also called sexual assault which can happen to both men and women of any age.[3] Rape which in medical parlance is defined as penile penetration of vulva[4] is the most serious kind of sexual assault and is punishable with imprisonment for life with or without whipping. Rape has always been condemned by most societies around the world, it is usually associated with primitiveness and brutality.[5] Rape simply means sexual intercourse with a girl or woman without the consent of the girl or woman. In Nigeria, a man commits rape if he has unlawful sexual intercourse with a woman who is not his wife and who at the time of the intercourse, does not consent to it. These two features of rape are encapsulated in two major statutes in Nigeria: the Criminal code and the Penal code.
Rape in Hornby[6] is defined as the crime of forcing somebody to have sex with one especially using violence. It is posited that rape could even happen „without the use of force‟.[7] By this, it is meant, that if for instance an adult of any age tactfully seduces a child of a tender age for either marriage or sex with an enticing gift and the child after collecting same willingly give in for it with the man, it is said to be also rape. This type of rape is viewed as “a sex act carried out by pathological men who were unable to control their own sexual desires.[8]
Rape is a serious and deeply damaging crime. It is unique in the way it strikes at the bodily integrity and self-respect of the victim, in the demand it makes on those public authorities required to respond to it and in the controversy it generates.[9] Rape is said to be unique as it is an inherently lawful activity made illegal because of lack of consent. The absence of consent converts what would otherwise be a naturally activity into a serious and violent wrong. In all cultures and religion rape is seriously frowned at. It is a serious crime even if the victim suffers no physical injury, minor cuts and bruises. That is because rape violates intimacy and autonomy in a way that physical injuries cannot.[10]
Rape has a devastating effect on its victims, their families and the society in general; the victims of this act face grave physical and psychological problems years after the incident and may carry the scar for life. This ranges from serious injuries, HIV infections, unwanted pregnancies etc.
In Nigeria, rape is defined in both the Criminal and the Penal codes. Section 357 of the criminal code defines the crime of rape as having:
“Unlawful carnal knowledge of a woman or girl without 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 of false and fraudulent representation as to the nature of the act or in the case of a married woman, by impersonating her husband”.
CHAPTER THREE
THE DEFINITION OF RAPE IN NIGERIA
The meaning of rape under the criminal code
In Nigeria, the offence of rape is prohibited by Section 357 of the Criminal Code Act. By that section, any person who has unlawful carnal knowledge[1] 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. The actus reus of rape is committed where a man has sexual intercourse with a woman without that person’s consent[2].
By the wordings of Section 357 of the Criminal Code Act (Supra), a man[3] (or boy) cannot be raped because he cannot be penetrated. Furthermore, the section specifically used “girl” or “woman” as part of the definiens of rape. Thus, only a girl or a woman can be a victim of rape. Consequently, only men can be perpetrators. This current definition of rape adopted by the Criminal Code Act is not in tandem with more recent legislation on the subject matter as it is anachronistic, outdated and superannuated. Additionally, it reduced rape to vaginal penetration.
According to the Supreme Court in Iko v State[4], rape in legal parlance means a forcible sexual intercourse with a girl or woman without her giving consent to it. Furthermore, In Natsaha v State[5], the Supreme Court held that to prove rape, the prosecution must prove:
- That the accused had sexual consent with the prosecutrix;
- That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit, or impersonation;
- That the prosecutrix was not the wife of the accused;
- 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;
- That there was penetration[6].
From the above statutory provision and supreme court decision, it is vividly clear that a boy/man can only be a perpetrator of the offence while the girl/woman will ever be the victim. Furthermore, by reducing the offence of rape to vaginal penetration, this totally shuts the door against male rape as boy/man has no vagina and as such cannot be said to have been “legally raped” under the current dispensation of the Nigerian jurisprudence on rape.
[1] Section 6 of the Criminal Code Act provides that when the term ‘’carnal knowledge’’ or the term “carnal connection’’ is used in defining an offence, it is implied that the offence, so far as regards that elements of it, is complete upon penetration. “Unlawful Carnal Knowledge’’ means carnal connection which takes place otherwise than between husband and wife.
[2] See also Section 284 of the Penal code Act to wit; (1) A man is said to commit rape who … has sexual intercourse with a woman in any of the following circumstances:- (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) 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 the man to whom she is or believes herself to be lawfully married; (e) with or without her consent when she is under fourteen years of age or of unsound mind. (2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.
[3] Though the Criminal Code Act may have been silent on male rape or limited rape to females, the Act is not however silent on prohibiting and punishing certain sexual offences against boys (men). Section 215 of the Criminal Code Act provides that any person who unlawfully and indecently deals with a boy under the age of fourteen years is guilty of a felony and is liable to imprisonment for seven years. Thje term “deals with” includes doing any act which, if done without consent, would constitute an assault as defined in Section 252 of the Criminal Code Act. Section 352 of the Code is to the effect that any person who unlawfully and indecently assaults another (male or female) with intent to have carnal knowledge of him or her against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years. Section 353, any person who unlawfully and indecently assaults any male person is guilty of a felony, and is liable to imprisonment for three years.
CHAPTER FOUR
APPRAISAL OF THE OFFENCE OF RAPE IN NIGERIA
The Legal Framework
In Nigeria a man commits rape when he has unlawful sexual intercourse with a woman who is not is wife and who at the time of the intercourse does not consent to it. It is pertinent to state here that while the Criminal Code is applicable to the southern states of Nigeria, the Penal Code is applicable to the northern states.[1]
At common law, rape is defined as an unlawful sexual intercourse with a woman against her will. The essential elements of the crime were sexual penetration, force and lack of consent. Also women who were raped were expected to have put up some sort of physical resistance to the utmost of their powers, otherwise the man would not be convicted of rape. The Criminal Code and the Penal Codes codified to a large extent the common law position on the crime of rape in their various sections.[2]
It is important to note that the Nigerian law on rape excludes anal penetration and penetration by some objects, unlike some other jurisdiction like England and the USA.[3]
The Provisions of Rape under the Criminal Code
According to the provision of Section 357 of the Criminal Code, “rape occurs when a person has unlawful carnal knowledge of woman without her consent, if with her consent by means of threat or intimidation, by means of fraudulent misrepresentation as to the act or by impersonating her husband.
The meaning of unlawful carnal knowledge is expressly provided for in s.6 of the criminal code. It defines carnal knowledge as: “Carnal connection which takes place otherwise than between husband and wife.”
The section also further states that an important element of carnal knowledge or carnal connection is penetration.[4] The slightest penetration of the vagina by the penis is sufficient. It is not necessary that the hymen was ruptured or there was ejaculation.[5] The code does not recognise that the penetration of a woman or girl‟s anus or mouth could be equally as traumatic as the vagina and that it should be considered as one of the elements which may constitute rape. Only a woman or girl may be raped as far as the wordings of the code suggest. Even though in this day and age, there have been cases of men and boys claiming to be raped, the Criminal Code Act does not take cognisance of this fact.
According to S.30 of the criminal code act, a male person under the age of 12 years is presumed to be incapable of having carnal knowledge. This is an irrefutable presumption which means that he cannot be guilty of the offence of rape or attempted rape”, even if it is shown that he has reached puberty despite his age. He may however be convicted of indecent assault.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
Conclusion
This study was carried out on the appraisal of rape under Nigeria law. It is concluded in this work that except the laws on rape are reviewed, victims will continue to have their rights to justice breached due to the lacunae in the law while the perpetrators of this heinous crime will continue to live above justice and commit more of this crime.
Rape being one of the dominant crimes in “Nigeria, affects the victim, psychologically, physically and socially. With the laws provided in the criminal code and the penal code, which are not enough to cover the various aspect of rape, the goals of these laws can only be achieved partially. If laws are enacted to partially provide for a crime in the society, of what use is that law to the society. There is need to update our laws to reflect the basic needs of the society and look at the laws of developed countries like England and America, and learn from these countries who have over the years found a way to provide for the different aspects to rape which they did not foresee. Although, the Violence against Persons (Prohibition) Act [1]which was enacted in 2015, made some new changes to the laws by giving a new definition to rape in Nigeria, it is disheartening that this act applies only to the federal capital territory” that is an action can only be brought against the person when it happens in that jurisdiction and not anywhere else.
The effect of rape includes both the initial physical trauma as well as deep psychological trauma. Most victims of rape are inflicted with injuries and issues with their reproductive system. Some are infected with sexually transmitted diseases. Having considered the provisions of the penal laws in Nigeria as regards to rape and that of other jurisdictions, it is obligatory to state that there is an imminent need for the revision of the law. Most common law countries have reviewed their law on rape, for instance the U.K. it is quite unfortunate that Nigeria is still behind in their penal provisions. In Nigeria, violators of male victims of rape and men who rape their wives go unpunished because of the lacuna in the law. It is therefore expedient that the provisions of law as regards to rape is made effective and efficient. This will go a long way to deter intending violators and also punish perpetrators of the crime.
Recommendations
It is strongly recommended that the various provisions of the relevant laws on rape are to be urgently reviewed by the National Assembly, particularly in terms of investigations and prosecution. Furthermore, Forensic Laboraties should be established in every state in Nigeria in order to effectively confirm and link an accused person directly to the crime of rape. This will further ensure that offenders do not go unpunished. The definition and provisions of rape should be made broader under our laws and attention should be paid to the circumstances surrounding rape in the country. Each state in Nigeria should have their own laws regarding rape and other offenses, and they must be implemented without prejudice. There should be provision made so that the VAPP Act does not only apply to the FCT but also to each state in Nigeria, as the crime rates in this state will be affected, leaving the other states.
The society should support rape victims, empathise with them instead of stigmatizing them as they respond to treatment more when there support and care are available. Adequate and functional rehabilitation centres and NGO‟s should be made available to victims of rape and there should be public sensitization and awareness so that the society will know the victims are not to blame and they can give adequate support to them.
The law on rape should be revised and made all-encompassing, making provisions of redress for males who are victims of rape and also wives who are raped by their husbands.
There should be an improvement in the way the police and other criminal justice officials treat victim of rape. These people should be trained on how to talk and respond to rape victims. Rape should also be attacked from the grassroots, local government should make sure there are enough educational centres to keep adolescents busy without having any time to look at pornography which is what triggers rape. Also, there should be tracts made available to the community so that the various information on rape is passed across to the people.
It is also recommended that the states should domesticate the relevant section of the Violence Against the Person (Prohibition) Act as it pertains to the offence of rape in order to reconcile the definition of the offense of rape with the more advanced definitions of other advanced and developed jurisdictions. Furthermore, the legislature (National Assembly and State Houses of Assembly) should be more active (or even proactive) by making laws that truly mirrors the dynamics of a developing society instead leaving the courts to keep applying old laws in a new age.
There should be improved medical and health services available for the victims; they should have an insurance covering them in the hospitals as many of these victims do not even have means of getting treatment. Psychological provisions should be made available for rape victims also as they need all the help they can get to remain stable and functional in the society. Nigeria should not be left out in the reforming of their laws, as many countries in Africa have made it a priority to reform their laws.
REFERENCES
- Adams, H. (2014). Rape of children by parents, elder relatives, and other responsible elders. Journal of International Women’s Studies, 10 (10), 12-15.
- Aidoo, A. (2011). Changes- A love story. London: Women’s Press.
- Akintunde, D. (2012). Rape: An infringement on the rights of women. Ibadan: Institute of Women in Religion and Culture.
- Akinwole, O.T. (2010). An appraisal of the communication strategies employed in the campaign against rape by concerned NGOs in Nigeria. Unpublished MA Dissertation, Department of Communication and Language Arts, University of Ibadan.
- Akosile, A. (2017). Women decry gender violence. Journal of International Women’s Studies,18 (14), 45-47.
- Amnesty International. (2010, 21 December). Nigeria: Time for justice and accountability (AI Index: AFR: 44/014/2000), 21 December 2010).
- Amnesty International. (2016, December 18). Time for justice and accountability. Retrieved September 27, 2017, from http://www.peacewomen.org/resources/
- Amnesty International. (2016, March 16). No protection from rape in war and peace. Retrieved July 7, 2017, from http://www.peacewomen.org/resources/Burundi/
- Amnesty International. (2017, November 2). Nigeria: Rape – the silent weapon. Retrieved July 7, 2010, from http://web.amnesty.org/library/Index/ENGAFR440202016
- Amnesty International. (2018, January 12). Women and girls: Forgotten victims of conflict. Retrieved September 27, 2010, from http://web.amnesty.org/library/Index/VAPP Act (2015)
