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In the last few weeks, there have been increasing reports about rape incidences in Nigeria. Although rape is an age-old crime, its recent hike is not only unnerving, but has also left so many disturbed particularly as the rapists do not only haveunconsensual, violent, and unlawful sexual intercourse with their victims, but in certain cases also kill them in a gruesome manner. It is no doubt that the recent upsurge in the reported incidence of this heinous crime has stirred so many questions. The more worrisome angle to this crime is the increase in the number of victims who are children as we have had cases of victims who are only few months old. The objective of this Q and A is to provide answers to some of those questions from the law’s perspective.

1. What is rape? What are the legislations on rape in Nigeria?

Rape in simple terms means sexual intercourse between a man and a woman or girl without the consent/approval of the woman or girl. The definition of rape is more particularly described under the relevant criminal laws in Nigeria. These laws and where they apply are:

1. The Penal Code –applicable in all the Northern States
2. The Criminal Code –applicable in all the Southern States
3. The Criminal Laws of Lagos –applicable only in Lagos State
4. The Violence Against Persons Prohibition Act – applicable only in the FCT Abuja but also domesticated in Anambra, Enugu, Oyo, Ebonyi, and Kaduna.
5. The Child Rights Act –applicable in the States which have domesticated it

Penal Code (PC): section 282 of the PC defines rape as “when a man has sexual intercourse with a woman against her will, without her consent, or when her consent has been obtained by putting her in fear of death or of hurt”.

Furthermore, section 282 (subsection e) (supra) states that “sex with a girl under 14 years of age or a girl who is of unsound mind is rape, whether or not there is consent”.

Criminal Code (CC): Under the CC, rape is when “any person has an unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, or 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 impersonating her husband”.

Criminal Laws of Lagos (CLL): Section 258 of CLL defines rape as when a man has “sexual intercourse with a woman or girl without her consent, or with incorrectly obtained consent where such consent was obtained by force, impersonation, threat or intimidation of any kind, fear of harm or false or fraudulent representation as to the nature of the act”.

Violence against Persons Prohibition Act (VAPP) : Section 1 of the VAPP Act defines rape as “when a person intentionally penetrates the vagina, anus or mouth of another person with any other part of his/her body or anything else without consent, or with incorrectly obtained consent where such consent was obtained by force/threats/intimidation, false and fraudulent representation as to the nature of the act, use of substances capable of taking away the will of that person, or impersonating a married woman’s husband in order to have sex with her”.

The VAPP Act explicitly defines rape, although it is yet to be adopted by all 36 states in the Federation.

Child Rights Act (CRA): Section 31 of the CRA provides that “sex with a child is rape, and anyone who has sexual intercourse with a child has committed the offence of rape whether or not the sexual intercourse was with the consent of the child”.

2. What is consent and can it be given or withdrawn during sexual relations?

Consent is not clearly defined in the laws relating to rape in Nigeria except in the CLL where section 264 defines consent as when a person agrees by choice and has the freedom and capacity to make and communicate that choice. Also in the case of GANIYU OGUNDIPE v. SAMSON MURAINA ODUWAIYE & ANOR (2013) LPELR-20474(CA) the court held that consent merely means to agree or to permit someone to do something.

In general, consent means “to give permission”. Therefore, in the context of rape, consent is the permission, freedom, and capacity to make a choice on whether to have sex or not. It is probable that a woman who consents to sexual intercourse at the start may disapprove of it in the course of the intercourse and it is also possible that a woman who at the start did not give her consent may later decide to permit the sexual intercourse.

In such instance, it is uncertain if rape can be successfully proved under the Nigerian law as consent is not clearly defined in the laws. However, under the laws of otherjurisdictions, for example, the UK’s Sexual Offences Act 2003, particularly sections 75-76, consent is expansively defined and it amounts to rape if a man continues sexual intercourse after a woman withdraws her consent, or starts sexual intercourse where there is no consent, notwithstanding the fact that consent is given midway.

3. When can you say that consent is incorrectly obtained?

By the provisions of the PC, CC, CLL, consent is incorrectly obtained where it is gainedby putting the woman in fear of death or hurt, or by impersonating a married woman’s husband in order to have sex, orby use of force, threat, and intimidation.

4. What is the punishment for rape under the Nigerian Law?

Under the various Nigerian laws with provisions on rape, the penalty for rape is life imprisonment.However, this is not a mandatory sentence in all the laws, which means that the court can in its discretion give a shorter sentence to the accused person. In the CLL and Child’s Right Act, the penalty is life imprisonment, likewise in the CC with an option to include caning. In the PC the punishment may be life imprisonment or a lesser term, including payment of fine.

However, under the VAPP Act, the punishment for rape is life imprisonment with certain exceptions, which are:

1. Where the offender is less than 14 years old, the offender is liable to a maximum of 14 years imprisonment.
2. In all other cases, to a minimum of 12 years imprisonment without an option of fine
3. In case of rape by a group of persons, the offenders are jointly liable to a minimum of 20 years imprisonment without an option of fine.

5. How do you prove the offence of rape?

To establish rape and the culpability of the accused person, the guilty act (actusreus) as well as the intention (mensrea) must be proved. In addition to this, the courts have consistently held that penetration with or without discharge is sufficient to prove rape as the slightest penetration will be sufficient to constitute sexual intercourse.

Other ingredients of rape that must be proved by the Prosecution are;

• That the accused had sexual intercourse with the victim.
• 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 victim was not the wife of the accused.
• That the accused had the mens rea, the intention to have sexual intercourse with the victim without her consent, or that the accused acted recklessly not caring whether the victim consented or not.
• That there was penetration.

A plethora of case laws exist in this regard. Examples are NdewenuPosu& Anor. V. The State (2011) LEPLR, SC 134/2010, Idi v. State (2017) LPELR-42587(SC), Lucky v. State (2016) LPELR-40541(SC).

6. What is spousal rape? Does the Nigerian Law recognize spousal rape?

Also known as marital rape is the non-consensual sexual intercourse between a husband and his wife. As of today, spousal rape is not an offence in Nigeria and therefore cannot be a cause of action in the courts. The laws criminalising rape in Nigeria specifically provide that sexual intercourse between a husband and wife is not unlawful. Section 258 (3) of the CLL provides that Sexual intercourse between a man and a woman who are married is not unlawful. Likewise section 282 (2) of the PC which states that Sexual intercourse by a man with his own wife is not rape, if she has attained the age of puberty. The Criminal Code in its section 6 also defines unlawful carnal knowledge as a carnal connection which takes place otherwise than between husband and wife. Spousal rape is therefore not recognized in Nigeria until the laws are amended to reflect this. However, a spouse may succeed in a suit for sexual abuse or sexual assault against the spouse who perpetrates those acts.

7. What is the punishment for false allegation of rape?

With the recent trend of allegations of rape against the male gender, there have been misgivings as to the credibility of some of the accusations by women. It is important to know that it is an offense to make false rape allegations. Section 8 of the VAPP Act criminalises false statements in this regard with attendant punishment of imprisonment for 12 months or a fine of N200, 000. Also, where an accused is found innocent in a charge of rape, he may institute an action against the prosecution/victim in a claim for damages/malicious prosecution or defamation.

8. Is rape only exclusive to the male gender?

The issue of rape being gender biased has been a jurisprudential issue in Nigeria for years because our law does not identify or contemplate situations where a man could be raped, particularly as the CC describes penetration as insertion into the vagina. Thus, it is widely believed that rape can only be committed by a man. However, the world is moving away from that perception as the offence of rape cuts across all genders. In particular, the provision of the VAPP Act is more progressive in this regard because it addresses both men and women in its definition of rape while recognising that anyone, regardless of gender,is capable of committing the offence of rape, and therefore seeks to protect against the odious act. States that are yet to domesticate this law are advised to adopt and enact similar laws to protect its citizens from such violence.

9. What are the defences available to an accused person in a charge of rape?

An accused person may rely on the following to exonerate himself/herself in a charge of rape;

1. Existence of consent
2. Lack of penetration
3. Marriage
4. Insanity- a person of unsound mind cannot be guilty of rape where the rape was committed while he was insane.

10. Can a woman be blamed for being a victim of rape?

In law, once a woman does not consent to the sexual intercourse, it is rape. Therefore, excuses that there was prior consent to kissing or other romantic activities, or that she willingly entered the house of the rapist, or that she was in a romantic/sexual relationship with the accused, or that she dressed provocatively, are at best extraneous victim blaming and cannot constitute a defence to a charge of rape.

11. What is the difference between rape and sexual assault?

In rape, there must be a penetration of the female genitalia without the consent of the female counterpart. But in a sexual assault, there need not be sexual intercourse at all as inappropriate touching of a woman may amount to sexual assault.

12. What is the Government doing about the recent rise in the incidence of rape?

According to news, the government seems to be intensifying its efforts in combating rape in the country. The few recent incidences which went viral and triggered demonstrations from citizens all over the nation, is yielding positive results. The House of Representatives condemned recent acts of rape and violence against women and girls, as well rising cases of same across the country at its plenary session of Thursday, 4 June 2020.  At the plenary session, the legislative arm resolved to take the following steps:

• Charge thePolice to improve their investigations into  reported cases of rape  as well as other reported cases of violence against women in a bid to bring the criminals to justice;
• Urge the Federal Government to launch a more effective campaign against rape and other violence against women and girls;
• Mandate all Members to dress in black at the next sitting in solidarity against death of the recent victims of rape and other violence against women and girls in Nigeria;
• Mandate the Committees on Women Affairs, Human Rights and Justice to present a Bill on amendments to laws that deals with cases of gender based violence;
• Urge all State Government to domesticate the Child Rights Act, VAPP Act and Anti-Rape Laws;
• Urge members of the House to declare State of Emergency on gender based violence in Nigeria;
• Call on NAPTIP  to open a register for convicted Rapists and make public their names and photos;
• Urge the Judiciary to speedily address all inconclusive rape cases; and
• Urge the FG to provide test kits for rape victims in all primary healthcare centres across the country.

In furtherance of the developments, state Governors have declared a state of emergency on sexual and gender based violence. The Governors have also been enjoined to domesticate the VAPP Act and the Child Rights Act, in order to increase the protection of women and children, and to ensure accelerated investigation and prosecution of offenders. In addition to that, some states have established a sex offenders’ register to name and shame sexual offenders. Other states that are yet to do so are encouraged to do so.

13. Is it only the male sexual organ that can be used to rape?

The contemplation of the Criminal and Penal Codes, is that only the Penis can be used to rape. This is a lacuna in the law that needs to be corrected, as it does not contemplate rape by foreign object. However, the VAPP Act states that the instrument of rape is not restricted to the male sexual organ, as it can be other parts of the body e.g. hand, or an object e.g. stick, pens, pencils, etc and we commend this definition and urge the states to adopt and domesticate the Act.

14. What is the punishment where rape leads to Murder?

In criminal law, the standard of demonstrating the guilt of an accused is proof beyond reasonable doubt. Once the prosecution can establish that the accused killed the victim in the course of committing the offence of rape, then the accused will be held guilty and convicted accordingly. The punishment for murder under the Nigerian Criminal laws is death. However, in addition to proving rape, the prosecution must also prove the culpability of the accused in homicide. Generally, on a charge of murder, the ingredients that must be established by the prosecution to prove the case beyond reasonable doubt are:

(i) That the deceased died,

(ii) That it was the act of the accused that caused the death of the deceased,

(iii) That the act of the accused which caused the death of the deceased was intentional, and it was with the knowledge that it would result in death or that grievous bodily harm would be the probable consequence of the act of the accused.

See: Abogede V. State (1996) 5 NWLR (pt 448) 270, Igabele V. State (2006) 6 NWLR (pt 975) 100; (2006) 3 SCM 143; (2006) LPELR 1441. Edoho V. State (2010) 14 NWLR (pt 1214) 651; (2010) 6 SCM 52; (2010) LPELR 1015.

Got more questions on the above subject matter? Send your enquiries to [email protected].

Kusamotu & Kusamotu

(The Greenfish Chambers)

2A, Udi Street, Osborne Foreshore Estate,

Ikoyi, Lagos State.

Email: [email protected]

Website: www.kusamotu.com                                                                                        

Tel: +234 (0) 8147203068

Disclaimer:

Nothing in this Article should be construed as legal advice from any of our lawyers or the firm. The answers are a general summary of developments, principles, circulars and press releases of interest on the subject of discussion and may not apply directly to any specific circumstances. Professional advice should therefore be sought before any action is taken.