Taming the unprecedented sexual assaults and other sexual offences in our society
Rape is defined as a sexual act forced on a person against his or her will. It is the most serious kind of sexual assault punishable with imprisonment for life with or without whipping. Generally, it may involve the use of a body part or an object. The long lasting effect on victims of rape can not be over emphasized. These include stigmatization, diminished social confidence, and the most traumatic seeing the perpetrator go scot free or punished lesser because of some lacunae in our laws. On this note, it is pertinent, therefore, to revisit the relevant laws: the criminal code (as applicable to south) and the penal code (as applicable to North) so as to bring in a widened penetration clause, criminalization of spousal rape and make rape a non gender crime.
So far, Section 357 of the Criminal Code provides that”
“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 threat or intimidation of any kind or by fear of harm, or by means of false or fraudulent representation as to the nature of the act, or, in the case of a married woman by impersonating her husband, is guilty of an offence which is called rape, liable to imprisonment for life pursuant to Section 358 CC”. Similarly, Section 282 of the Penal Code (PC) provides that, “any man who has sexual intercourse with a woman against her will, without her consent, or with her consent, when her consent has been obtained by duress, fraud or misrepresentation, is guilty of rape, and shall be liable to life imprisonment”. From the foregoing, proof of capacity is paramount. Section 30 of the Criminal Code excludes a male person under the age of 12 years to be capable of having carnal knowledge, therefore, cannot be guilty of the offence of rape or attempted rape. but he may be convicted of indecent assault. The implication is that, though, the accused is under 12 years, the presumption is of law and can be vitiated by showing that he has fully developed. Problem may arise where the accused, though under aged, but has reached puberty and fully developed to have carnal knowledge, due to prevalent changes in the growth and development of children in recent times. Where this happens, the literal approach can be jettisoned, after all, the Judge do make laws. Still on capacity, a husband can not be guilty of rape upon his wife under the codes; but the effect of the immunity is not unlimited. Where a competent Court has issued a separation order with a clause prohibiting the couple from cohabiting or in case of dissolution it will be rape for the husband to have intercourse with the wife without her consent because the implied consent to intercourse at marriage has been revoked by the order. A husband may be guilty of assault if he applies force or violence in the course of exercising his right to intercourse. I wonder how many husbands have been convicted in Nigeria for such, but it happens on daily basis even as we speak.
Finally, on capacity, under the codes a woman can not be guilty of committing rape. The clauses “woman or girl, and sexual intercourse with a woman” as in Section 357(CC) and 282 (PC) makes it impossible for a woman to be guilty of rape; which means there is no corollary to the above sections. Another very important element of rape is carnal knowledge. Under the codes an unlawful carnal knowledge is complete when the genital organ of a man merely penetrates a woman or girl’s genital organ. As a result, not all carnal knowledge amounts to rape. For a carnal knowledge to amount to rape, the accused must have had carnal knowledge of woman or girl without her consent or with her consent but the consent was obtained by force or by fraudulent means. Clearly, the definitions are tailored to protect women or girls from being raped, under the codes male on male rape and female penetrated rape are not being contemplated but such ugly incidence happen every day in our society.
A discourse on rape can not be complete without the consent element. On a charge of rape, the onus lies on the prosecution to prove that the accused had carnal knowledge of a women or a girl (age not important) without her consent. The prosecution must prove the actus reus (intercourse without the victims consent) and mens rea (intention to perform the act without the victims consent) of the offence of rape. Consequently, consent obtained by force or by means of fraud or intimidation or fear of being harmed is no consent at all. Also consent granted as a result of exhaustion after long struggle can not be said to be consent. Furthermore, if a person of weak mind or a person who is unable to understand the nature of the act, subjects knowingly or unknowingly, the defence of consent will not avail the accused. He will be liable for rape because consent, by the contemplation of sections 357 (CC) and 282 (PC) should not be anything less mutual. Under the law also, it is immaterial the victim has consented previously or that she is a prostitute. Even a consent given can also be withdrawn on basis of recklessness or unsatisfactory act. However, the important of consent is so sacrosanct to bring any con-sexual act in conformity to the law of nature.
Now, combined reading of sections 357 (CC) and section 282 (PC) provides the effect that penetration of a women or a girl’s genital organ with any object other than man’s genital organ does not amount to rape. Again, the section contemplates rape to be between man and woman or girl. As a result, a woman or a girl can not be guilty of rape against a fellow woman or girl. Also a man cannot rape a man and a woman can not rape a man. Under the codes, these are impossible but evidence shows that a woman can penetrate another woman with sex toys; same is applicable to woman penetrating a man either by force, intimidation or blackmail.
It is also possible for a woman to force a man to penetrate her. However, the much the law could offer such victims is punishment of the accused for indecent assault under the Violence against Persons Act 2015, which has been widely criticized for gross inadequacies. In addition, spousal rape is out rightly not contemplated in the codes, therefore unknown to Nigeria Legal system. This is not so in other jurisdictions like USA, Britain, India, South Africa etc.
Consequently a redefinition of the offence of rape is hereby put forward thus: ‘a person is guilty of rape if he or she unlawfully commits an act which causes penetration with his or her genital organ or any other object which causes penetration of genital organ of another person, without or with consent, if obtained by force or blackmail; misrepresentation or fraud is liable to life imprisonment’.
With this we may have a safer sex society.
Njoku Markgeo Chinwike (Esq.)
Writes from the Faculty of Law, University of Nigeria, Enugu Campus