Is there an age limit for people charged with rape? What is the difference between rape and sexual assault legally?
All these questions and more are answered in today’s part of A Lawyer’s Perspective: 50 Answered Questions on Rape
In case you missed it, A Lawyer’s Perspective: 50 Answered Questions on Rape Pt. 3
From the editor: Please note that some language used in this post might be deemed graphic in nature. Reader’s discretion is advised.
26. If a rape victim kills her attacker in self-defence, can she be charged with murder or manslaughter?
She may be charged with murder or manslaughter, depending on the circumstances of each case. She may however be set free, if she is able to justify her action in the circumstances she found herself.
27. If a rape victim dies in the course of a sexual intercourse, what offence can a perpetrator be charged with?
The perpetrator may be charged with either manslaughter or murder, depending on the peculiar circumstances of each case but certainly not rape anymore.
28. Can rape be proved without the evidence of a third party?
Yes. It may be proved without the evidence (corroboration) of a third party, especially where medical evidence strongly connects the accused person to the crime or the accused person confesses to have committed it.
29. Can a rape case be heard in camera or a victim be allowed to wear a mask in court?
Usually, a rape case, like every other case, must be heard in the open court where, though press men may be barred, other members of the public may watch the proceedings. The rape victim may not be allowed to wear mask. This is because the court needs to be able to see and watch the demeanour of the victim in order to form an opinion on whether she is a credible witness or not. No doubt, rape is a heinous; yet, the supposed rapist is presumed to be innocent and can only be found guilty, if the case against him is proved beyond reasonable doubt.
30. Should rape victims be asked embarrassing questions in court?
It is most likely that, no matter what, a victim of rape may be confronted with certain discomforting questions under cross-examination by the lawyer representing the accused. This is a task that must be performed in order to ensure that the accused person is not unjustifiably punished and bearing in mind that the punishment for rape is severe. However, the court is empowered by law not to allow questions that tend to expose the rape victim to ridicule.
31. Should underage children who are victims of rape be required to appear in court to give evidence?
Like adult victims, children too must appear in court to give evidence if a perpetrator is to be held accountable. However, in some exceptional cases, especially where a victim is of extreme tender age, her evidence may be taken in camera. This is likely to be so upon the application of the prosecution.
32. Can rape be committed by fingering or entering a woman’s genital with an object?
Under the Nigerian law, it is not possible to commit rape without the use of a male penis. It is however immaterial whether the penetration is only slight or that there is no ejaculation. All that is needed to be proved is that the penis penetrates the vagina, even if it is just its tip.
33. Can rape be committed by having anal sex with a woman?
It may amount to sexual assault but not rape under the Nigerian law.
34. What is the difference between rape and sexual assault or defilement?
In relation to rape, there must be a penetration of vagina with a penis without the consent of the female counterpart, while in a sexual assault, there need not be sexual intercourse at all. For example, inappropriate touching of a woman may amount to sexual assault. In the case of defilement, on the other hand, it is a sexual intercourse with a girl under eleven (11) years. It is immaterial in this situation whether there is consent or not as the law presumes that such a girl is incapable of giving consent. The crime also carries life imprisonment but the case must be prosecuted within two months of its commission.
35. Is there age limit as to who can be charged with rape?
A male under 12 years of age is incapable of committing rape under the Nigerian law. So, if it is alleged that a boy below 12 years commits rape, as soon as it is established that the boy is below 12 years, the case will be dismissed for lack of jurisdiction, even if he has attained puberty. He may however be punished for indecent assault.
36. Is attempted rape a crime? If yes, what is the punishment?
Yes. It is a crime and on conviction, it carries 14 years’ imprisonment.
37. Is it a defence that a rape victim dresses provocatively?
No. It is not a defence.
38. Can rape be committed where a rapist and his victim have had sex in the past?
Yes. A woman has right to refuse sex on a particular occasion, not minding the fact that it has taken place between them in the past.
39. Does it matter if a rape victim does not resist her attacker or shout for help during the incident?
What is important is to prove that there was no consent to have sex. However, convincing a court on the issue of lack of consent may be achieved faster, if it is also established that the victim shouted or resisted in the course of the forced intercourse.
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.
Contact: firstname.lastname@example.org; 0708-291-8395
. See, sections 227, 228 and 234 of the Evidence Act, 2011.
. See, section 36 (4) (a) of the 1999 Constitution of Nigeria (as amended).
. This is provided for under section 30 of the Criminal Code. However, there is no similar provision under the Penal Code.