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A Lawyer’s Perspective: 50 Answered Questions on Rape Pt. 1

Rape is one of the oldest crimes in human history. It is a crime in all countries of the world but definition and punishment differ from place to place. It has also been noticed that rape cases are reported more in the Western world than many other parts of the globe. For example, in Africa and Asia, rape victims usually lack the courage to speak out or report their experiences to the law enforcement agencies due to negative societal attitude prevalent in such climes. Rape thrives in secrecy and in a culture where victims are even blamed for what happens to them, instead of the perpetrators.

However, in attending to this all-time important subject, I have decided to break it down, both in terms of the language and style of writing. The article is written in simple language, devoid of technical words and phrases as well as legal citations and where citations are given, they are minimal. My experience over the years has made me know that a topic of this nature will be better understood, if prepared and delivered in a question-and-answer manner. That is exactly what I am doing here now. I have formulated 50 questions, covering all the crucial aspects of the subject of discussion and have also provided answers to them in accordance with the position of the Nigerian law, while references are made to foreign jurisdictions only when necessary.

 

1. What is rape?

In a simple language, rape may be defined as a sexual intercourse between a man and a woman or a girl against the will or consent of the female partner. Going by the provision of law, rape is defined under section 357 of the Criminal Code which applies to the Southern part of Nigeria 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 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.

 

In the Northern part of Nigeria, it is defined under section 282 of the Penal Code as:

  • 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.

The two definitions above show that in Nigeria, rape can only be committed by a man against a woman and not vice versa. In other climes, this is not the case because it has been recognised that a man may also be a victim of rape and it may be perpetrated by any person, including a woman. For example, in the US[1], the Department of Justice defines rape as:

Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

In the UK[2], under section 1 of the Sexual Offences Act (2003), it is defined as:

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents…

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

2. Upon being raped, what should a victim do?

A victim of rape must first proceed to a nearby Police Station to lodge a complaint. A victim must not change her dress, must not wash or shower after the incident and must not remove anything from the scene of crime because doing so may negatively affect pieces of evidence that the Police may need to hold the perpetrator accountable. Usually, it is the Police that will take the victim to a hospital for medical examination. It is advisable that medical examination should be carried out as soon as possible, preferably on the day of the incident.

3. If the Police refuse to act after a report of rape has been made to them, what can a victim do?

A victim should write a petition to the Commissioner of Police in that State, giving details of the officers who attend to her on the day her complaint is lodged, the name of the Police Station and other necessary information. If this step does not produce a desired result, she may contact a lawyer. There are equally NGOs[3] that provide legal assistance and support to rape victims

4. What is consent?

It refers to permission or freedom and capacity to make a choice on whether to have sex or not. When a woman says “no” to sex, her “no” should be taken as “no”.

5. Can consent be withdrawn or given in the middle of a sexual intercourse?

It is possible that a woman who gives her consent to a sexual intercourse at the beginning may later change her mind in the course of the “act” and it is also possible that a woman who does not give her consent at the beginning may later decide to consent to it. Can it be said that there is rape in any of the situations? Under the Nigerian law, it is doubtful if rape can be successfully proved in any of the two cases because “consent” is not clearly defined in the Criminal or Penal Code. However, under the UK’s Sexual Offences Act, consent is extensively defined and it amounts to rape, if a man continues sexual intercourse after a woman withdraws her consent or starts a sexual intercourse where there is no consent, not minding the fact that consent is given midway[4].

 

To be continued…

 

About the writer:

Kehinde Adegbite is a lawyer of over 10 years’ post-call experience. He is at present a Principal State Counsel, Ministry of Justice, Ibadan, Oyo State. He is the author of HOW TO WRITE YOUR WILL WITH EASE and LEARNING THE LAW IN NIGERIA. The author is presently working on another book titled WHAT THE LAW SAYS ABOUT MARRIAGE AND DIVORCE. His books, though useful for lawyers, are written essentially for non-lawyers.

Blog: www.gettipsforeveryday.blogspot.com

Contact: barrykehinde@yahoo.co.uk; 0708-291-8395

 

NOTES

[1]. An updated definition of rape, available at http://www.justice.gov/opa/blog/updated-definition-rape (visited last on 2nd December, 2015).

[2]. A critical analysis of the UK’s definition of rape shows that the offence can only be committed by a man, though a man, like women, could also be a victim. Under the Department of Justice’s definition, on the other hand, both men and women may be victims or perpetrators. It is observed that both the US and UK’s definitions make use of the word “penetration”, instead of “carnal knowledge” or “sexual intercourse” as found in the Nigerian definitions of rape, which means that rape may be committed where a person’s vagina, anus or mouth is penetrated with penis, object or any part of one’s body whether there is sexual intercourse or not.

[3]. One of such organisations is the Women’s Clinic, located at the Faculty of Law, University of Ibadan, Ibadan.

[4]. See, sections 75 – 76 of the Sexual offences Act, 2003.

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