1. Introduction
Sexual aggression constitutes a violation of the victim's fundamental human rights, as it often involves detaining, restraining of the movement and physical assault of the victim.
It is a form of assault on the dignity of the victim/survivor by a sociopath who sees women most especially as a sexual territory to be brutally subdued and looted.
Rape is a sexual aggression and the effect on the victim is very deep. Most of the victims suffer the pain in grave silence, in order not to subject their dignities to further assault by those who in most cases see them as accomplices rather than victims of sexual aggression or violence.
This edition of Akintunde Esan’s Legal Illuminations focuses on providing illuminations on Nigerian jurisprudence on rape and some relevant provisions of the law on sexual offences, in order to provide a first aid legal assistance to the victims/survivors and prosecutors of rape and sexual violence in Nigeria.
2. Definition and the Nature of the Offence of Rape[1]
"The act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Consent in this context must be devoid of any form of external influence. A child who is under age is not however capable of giving consent. Rape is by nature grave, devastating, traumatic; it also reduces the totality of the victim's personality.
Several definitions given to rape are all characterized by an absence of consent as a common feature. The Nigerian Supreme Court has defined rape in a number of cases as:
''An unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent."
"an 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 or 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."
In summary therefore, rape can be interpreted as an unlawful carnal knowledge or non-consensual sex; that is, penetration without consent.
3. The Facts which must be proved to Establish the Offence of Rape[2]
"The law is settled and well-grounded that the prosecution has the burden and duty to prove the accused person guilty of the following ingredients in order to sustain the conviction of the offence of rape:
a) that the accused had sexual intercourse with the victim;
b) 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;
c) that the victim was not the wife of the accused;
d) 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.
e) that there was penetration.
4. The Most Essential Ingredient in the Proof of Rape
The most essential ingredient of the offence of rape is penetration, the extent no matter how slight will serve sufficient proof. It is well accepted and settled that penetration, with or without emission, is sufficient even where the hymen is not ruptured. The slightest penetration has served as sufficient to constitute the act of sexual intercourse[3].Hymen is defined as: "the piece of skin partly covering the vagina of a woman who had never has sex[4]".
5. What amounts to Sufficient Penetration in Proof of Rape
Nigerian Case law is replete with authorities that even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Thus, even where penetration was proved but not of such a depth as to injure the hymen, it has been held to be sufficient to constitute the crime of rape[5].
Thus, it is settled that, the offence of rape is deemed complete, upon proof of penetration of the penis into the vagina. In the English case of R. U. Marsden[6] it was held that emission is not a necessary requirement to prove penetration.
It should be noted that, the discharge of "whitish", "greenish", "reddish" or whatever colour of fluid in a rape offence, is not considered credible evidence for establishing the offence of rape[7].
6. Does the Law Requires Witnesses to Prove Rape
On whether the proof required to establish the offence of rape must be based on an independent credible corroborative evidence. It should be noted that no law in Nigeria, as of now that says that corroboration is necessary. It is however, desirable to get the evidence of the prosecution strengthened by other implicating evidence against the accused.[8]However, whether a particular evidence can be corroborated, is for the trial Judge to decide[9].
7. Whether the Sworn Evidence of a Minor requires Corroboration
The law is trite and well settled that a minor needed no corroboration of her evidence which was sworn on oath. In the Supreme Court case of Ogunbayo v. the State (supra) it was held that a sworn evidence of a minor requires no corroboration[10]. Thus, it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix.
In Upahar & Anor v. State (2002) LPELR-5937(CA) ; (2003) 6 NWLR (Pt. 816) 230 that in Nigeria, a person cannot be convicted of rape of a girl under 14 years of age upon the uncorroborated testimony of one witness[11].
8. Relevant Statutory Provisions on Rape and Sexual Offences
a) The Crime of Rape under the Criminal Code Act
The Criminal Code Act applies in the Southern States of Nigeria. Section 357 of the Code defines rape thus:
“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 false threats 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 case of a married woman, by impersonating her husband is guilty of an offence called rape”.
b) Carnal knowledge
When the term "carnal knowledge" or the term "carnal connection" is used in defining an offence, it is implied that the offence. so far as regards that element of it, is complete upon penetration. "unlawful carnal knowledge" means carnal connection which takes place otherwise than between husband and wife[12].
c) Immature Age
Under Section 30 of the Criminal Code a person under the age of seven years is not criminally responsible for any act or omission. A person under the age of twelve years is not criminally responsible for an act, omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
A male person under the age of twelve years is presumed to be incapable of having carnal knowledge, though he may, be convicted of indecent assault[13].
d) The Crime of Rape under the Penal Code Act
The Penal Code Act applies in the Northern States of Nigeria. Section 282 and 283 of the Penal Code. No. 18 of 1959, designated as Cap 89 in the Laws of Northern Nigeria, 1963, relate to the offence of rape and its punishment. The Sections provide as follows:
282 (1) A man is said to commit rape who, save in the case referred to in Sub-Section (2) 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 another 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;
282 (2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.
From the above provisions of the Criminal and Penal Codes, it is glaring that under Nigerian law:
- only a man is capable of committing the crime of rape.
- although a woman cannot commit the offence of rape under the Penal Code Act, she may however be charged by the prosecution with abetting rape under section 83 of the Code.
- the use of the term “carnal knowledge” under the Criminal Code Act suggests that penetration of the vagina could be done by penetration with a foreign object, while the use of the term “sexual intercourse” under the Penal Code Act suggests that only a penis can penetrate a vagina.
- Whereas a male person under 12 years old is presumed incapable of having carnal knowledge under the Criminal Code Act, there is no such provision the Penal Code Act.
- There is, therefore, nothing to stop the prosecution from charging a child over 7 years of age, for example, for rape if it can be shown that he has attained a sufficient maturity of understanding to judge the nature and consequence of his act.
- Consent is an act of reason and involves a presumption that the person giving a consent has weighed up the pros and cons of the matter which she has consented.
Under section 218 of the Criminal Procedure Code Law of Northern Nigeria, it was held that, the learned trial Judge, had power to convict the 1st appellant for attempted rape, in so far as the ingredients of the full offence of rape are not satisfactorily established.[14]
10. Punishment of Rape
Any person who commits the offence of rape is liable to imprisonment for life, with or without caning. S. 358.Criminal Code Act
Whoever commits rape, shall be punished with imprisonment for life or for any less term and shall also be liable to fine. S. 283 Penal Code Act.
Any attempt to commit the offence of rape or sexual assault by penetration commits a felony and is liable on conviction to imprisonment for fourteen (14) years
Any person who attempts to commit the offence of rape is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning. S. 359. Criminal Code Act.
In Lagos State under S.260 of the Lagos State, Criminal Law, 2011 (Laws of Lagos State, 2015) any man who has unlawful sexual intercourse with a woman or girl without her consent,commits the offence of rape and is liable on conviction to imprisonment for life.
Any person who has sexual intercourse with a child commits a felony and is liable on conviction to imprisonment for life. S.137 of the Lagos State, Criminal Law ,2011.
11. Marital Rape
There is no provision for marital rape in Nigerian law in as long as the wife has attained to puberty.
In R. v. Miller[15], it was held that until that valid subsisting marriage is dissolved; the husband cannot be convicted of rape.
12. Whether only a Woman can be Raped
The wordings two major criminal codes in Nigeria, the criminal and penal Codes seem to suggest that only a woman or girl may be raped and S.360 of the Criminal Code also suggest that only the female gender can suffer indecent assault from its wordings that:
“Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour and is liable to imprisonment for two years.”
However, under the Lagos State Criminal Law, 2011 the offences of sexual penetration without consent, sexual assault and harassment are not limited to the male gender alone but include both genders by the use of the phrase “any person” which is unisex. Section 265 criminalised the engagement in sexual activity without the consent of the other person:
“any person who causes another to engage in a sexual activity without that other person’s consent commits a felony and is liable on conviction to imprisonment for five (5) years ” and “where the sexual activity caused involved sexual penetration, the offender commits a felony and is liable on conviction to imprisonment for life”
13. Sexual Assault by Penetration other than Vaginal Penetration
It should be noted that while the Criminal and Penal Codes do not recognise the penetration other than vaginal penetration as one of the elements which may constitute the offence of rape, it is a crime under Section 261 of the Criminal Law of Lagos State to sexually penetrate any opening in the body of another without the consent of the person:
“Any person who penetrates sexually, the anus, vaginal, mouth or any in the opening in the body of another person with a part of his body or anything else, without the consent of the person commits a felony and is liable on conviction to imprisonment for life.”
This section seems to include female-male rape, male-male rape, female-female rape.
14. Sexual Assault without Penetration
Any person who sexually touches another person with any part of his body or with any object without his consent commits felony and is liable on conviction to imprisonment for three (3) years. S.263
15. Sexually Assault by Persons in Positions of Authority
Any consent to sexual intercourse purportedly given by a girl under the age of 16 to her teacher, guardian or any person entrusted with her care or education is not valid consent[16].
16. Sexually Harassment
Sexual harassment is unwelcome sexual advances, request for sexual favours, and other visual, verbal or physical conduct of sexual nature which when submitted to or rejected-
a) Implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interfere with the person’s work or educational performance;
b) Implicitly or explicitly suggests that submission to or rejection of conduct will be a factor in academic or employment decisions; or
c) Creates an intimidating hostile or offence learning or working environment.
Any person who sexually harass another commits a felony and is liable on conviction to imprisonment for three (3) years.
17. CONCLUSION
Obviously, there is the need to review the laws on rape and sexual violence in Nigeria to reflect modern day sexual realities, where either of the genders can be the sex aggressor using the penis, breast, fingers, mouth or any other body parts as well as sex objects such as sex toys.
Have you been raped or falsely accused of raping and thus confused or feeling humiliated and you need to pour out your mind to an understanding legal mind for guidance in seeking for redress, you may contact Akintunde Esan or Ase Olodumare Chambers for further illumination on your predicament.
Akintunde Esan is a top-rated leading online legal consultant in Nigeria. He is the Managing Partner, at Ase Olodumare Chambers, a Lagos based Law Firm.
ILLUMINATION ON RAPE AND OTHER SEXUAL OFFENCES IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)
[1] See Per Ogunbiyi, J.S.C. ISA v. Kano State (2016) LPELR-40011(SC), Pp. 10-11, Paras. D-D.
[2] See Ogunbayo V. State (2007) 8 NWLR (Pt 1035) 157; Upahar v. State (2003) 6 NWLR (pt 816) 230; State V. Ojo (1980) 2 NCR 391; Okoyomon V. State (1973) 1 SC 21; State V. Anolue (1983) 1 NCR 71 and Iko V. State (2001) 14 NWLR (Pt.732) 221.
[3] See Iko V. State, Ogunbayo V. State and State V. Ojo (supra) ; Jegede V. State (2001) 14 NWLR (Pt.733) 264.; Per Ogunbiyi, J.S.C. ISA v. KANO STATE (supra) P. 12, Paras. D-F
[4] See Oxford Advanced Leamer's Dictionary, Special Edition at page 585." Per OBADINA, J.C.A. Upahar & Anor v. the State (2002) LPELR-5937(CA) P. 27, Paras. B-C
[5] See: The State v. Ojo (1980) 2 NCR 391 at 395; Jegede V The State (2001) 7 SCNJ 135 at 141.
[6] (1891) 2 QB 149 at 150, per Lord Coleridge, C.J.
[7] Per Muhammad, J.S.C. Isa v. Kano STATE (2016) LPELR-40011(SC), P. 30, Paras. B-E
[8] See: Reekie V. The Queen (1954) 14 COACA 501 at 502; State V. Ojo (1980) 2 NCR 391; Ogunbayo V. State (2007) 8 NWLR (Pt.1035) 157; Per Muhammad, J.S.C. Isa v. Kano State (supra), P. 30-31, Paras. F-A
[9] per Ogbuagu, J.S.C. Ogunbayo V. The State (2007) LPELR-2323(SC) P. 20, paras. B-C.
[10] Per OGUNBIYI, J.S.C. Isa v. Kano State (supra) (P. 16, Paras. C-D)
[11] See section 218 of the Criminal Code
[12] Section 6
[13] See section 176 of the Criminal Procedure
[14] Upahar & Anor v. the State (supra) Per Obadina, J.C.A.(P. 37, Paras. A-B)
[15] (1954) 2 282
[16] Section 283 Penal Code Act
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