Over the last couple of weeks, the Nigerian news media has been awash with the reportage of a series of rape incidences across the length and breadth of the country. More worrisome is that perpetrators of the heinous act have become more dastardly in their methodology, often preferring to leave their victims for dead, terribly anguished or badly bruised. From the available news reports, there are yet increased cases of defilement of minors and children. The very elderly and widows have not been left out in this new scourge.
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The current and trending rape pandemic is yet another pandemic ravaging a nation barely trying to exit the covid19 pandemic. The intendment of this concise and lucid piece is to raise awareness on this new wave of pandemic and critically dissect some legal questions on the issue of the offence of rape. The format of the legal questions to be examined are as follows: What is rape.? Who can be raped? How do you prove the offence of rape.? What is the punishment for rape? What other offences are similar to rape? What are the defences to the offence of rape? What is the correlation between indecent dressing and rape?
What is Rape?
This seemingly rhetorical and innocuous question is quite germane, in view of the existence of other forms of sexual assaults in the classifications of offences against the person. The clear and distinct examination of this question further becomes very relevant, especially when examining the issue of rape in established relationships, for example, between married couples.
Simpliciter, rape is a specie of sexual assault characterized by having sexual intercourse (penetration ) with a woman without her consent. Section 260(1) of the Criminal Law of Lagos 2015 hit the nail on the head when it defined the offence of rape as follows :
260(1) Any man who has unlawful sexual intercourse with a woman or girl without her consent, commits the offence of rape…
See also Section 357 of the Criminal Code Act and Section 1(1) of the Violence Against Person(Prohibition) Act 2015
The key ingredients for the offence of rape, from the above statutory definition, are unlawfulness of the sexual intercourse and that the sexual intercourse was without the woman or girl’s consent. Obtaining a woman’s consent by use of force, impersonation, threat or intimidation of any kind, fear of harm or fraudulent representation before the unlawful sexual intercourse still renders the sexual intercourse to be rape. The law specifically defines “sexual intercourse” as complete or the slightest penetration of the vagina. It does not matter that the hymen was not ruptured( in the case of virgins).
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The above definition tallies with the definition of the offence by the Nigerian Appellate Court in the case of Ahmed v. The Nigerian Army (2011)1 NWLR 89 where the Court of Appeal defined “rape” as follows:
“The offence of rape is the 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….It may be stated differently by saying that rape, means forcible sexual intercourse with a girl or woman without her giving her consent to it.
Who can be Raped?
The specific definition of the offence of rape in the above law under reference, applicable to Lagos State, automatically clarifies some knotty issues such as: which gender can be raped? And whether there can be said to be rape amongst a married couple? From the earlier elucidations above, it is opined that as for the case of Lagos and some other states of the Federation of Nigeria, the controversial question of whether a man can be raped by a woman does not even arise as that is not the intent or clear provision of the law. It is only a woman and a girl that can be raped. This, of course, includes the girl child. Section 137 of the Criminal Law of Lagos 2015 and Section 27 of the Child Rights Law of Lagos 2015, clearly outlaws sexual intercourse with a child. Under the aforesaid Child Rights Law, a child is a person under the age of 18years.
The situation would appear slightly different under the Violence Against Person(Prohibition) Act 2015 (applicable only to Abuja FCT) which under section 1(1) states that a “he or she” can commit rape, meaning that a man or a woman can now be liable under the said Act.
As to the issue of whether a man can rape his wife, it will appear that Section 260(3) of the Criminal Law of Lagos 2015 attempts to clarify this question when it states thus “Sexual intercourse between a man and a woman who are married is not unlawful.”
From the above, it is opined that though a man cannot be raped (at least, under Lagos Laws) his remedy may lie with alleging some other offences similar to rape. Further, though a married man may not be held to have raped his wife( by reason of the lawfulness of the sexual intercourse), the fact that such sexual intercourse is without the consent of the wife is a ground for the wife to proceed against the husband by alleging other offences similar to rape. These similar offences would be highlighted thereafter.
Theophilus Orumor Esq.
The Law House.
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