This past week, the Nigerian media space has been agog with stories of rape. Rape is the most serious kind of sexual assault and the punishment for it is life imprisonment. There are other kinds of sexual offenses such as sexual assault, harassment, indecent assault, defilement, sodomy, buggery, necrophilia, and bestiality but our focus for today would be on rape.
Four criminal law jurisdictions guide the offense of rape in Nigeria. Although their provisions are similar, it is important to note them. The Penal Code, applicable in the Northern States, the Criminal Code, applicable in the Southern States, the Criminal Laws of Lagos, applicable in Lagos State, and the Violence against Persons Prohibition Act, applicable in the Federal Capital Territory are the primary laws that provide against sexual-based offenses in Nigeria.
Rape is defined as non-consensual sexual intercourse in all jurisdictions. Any person who has unlawful carnal knowledge of a woman or a girl without her consent has committed the offense of rape.
Under the criminal code, consent that is obtained fraudulently, under threat or intimidation, and by impersonating a married woman’s husband also qualifies as rape.
In this jurisdiction, a man under the age of 12 is not capable of having carnal knowledge because of the presumption of law that such a person has not reached puberty. This presumption of law cannot be rebutted.
In the Penal Code, the offense of rape is committed when a man has sexual intercourse with a woman against her will, without her consent or with wrongfully-obtained consent. In this jurisdiction, sexual intercourse with a girl under 14years or a girl of unsound mind qualifies as rape, irrespective of whether consent was obtained.
Under the Criminal Laws of Lagos State, a man who has sexual intercourse with a girl or woman without her consent or with wrongfully-obtained consent commits the offense of rape. Incorrectly obtained consent here means consent obtained by force, impersonation threat, intimidation of any kind, false and fraudulent representation as to the nature of the act. This implies that in Lagos’s fraudulent representation of the nature of the act could be rape.
The Violence against Persons Prohibition Act regards rape as intentionally penetrating the vagina, anus, or mouth of another person with any other part of his/her body or anything else without consent or with wrongfully-obtained consent. It is important to note that this act does not specify gender therefore it can be argued that women can rape men or same-sex rape can occur.
The Child Rights Act states that sex with a child is rape and any person guilty of such is liable to imprisonment for life.
There are certain classes of people who cannot be guilty of the offense of rape.
The first class is the husband. A husband cannot be guilty of raping his wife because unlawful carnal knowledge is regarded as carnal knowledge that takes place outside the union of a husband and wife in law.
However, there are exceptions to this. Thus a husband is capable of raping his wife if the marriage has been dissolved, if there is a separate order containing a clause that removes the bound to cohabit, where there is an injunction on sex or where there is an existing undertaking by the husband not to assault, molest or otherwise interfere with the wife.
It must be noted however that while a husband may not be guilty of rape, he may be guilty of assault or wounding if he uses force or violence.
The second category of persons who cannot be guilty of the offense of rape is women. This is because the offense can only be committed against a woman. However, section 7 which provides for aiding, abetting, and counseling has always been used to maneuver this provision. Also, note the provisions of the Violence against Persons Prohibition Act 2015 that gives room for women to be guilty of rape.
The third category of persons is men under the age of 12 in criminal code jurisdictions already mentioned above.
Proving rape is difficult; There are two vital elements to establish which are: carnal knowledge and consent. In proving carnal knowledge, you do not need to show that your hymen was ruptured.
It is also not necessary to show that there was an emission of semen. What is important is to show that there was penetration which is best done by a medical examination, failing which an eye witness account can suffice. It is important for victims of rape to immediately visit a hospital to be examined.
As already explained above, the absence of consent is the most important element. It is not a defense to say that the person is a prostitute, a concubine, or that she has consented to sex with you on previous occasions.
However, it is difficult to prove a lack of consent in the above situations, so if avoidance is possible, it is best. Consent given in exhaustion after struggling or resisting is also not consent. The evidence of struggle or resistance can be a good way to prove that consent was obtained by force.
Finally, the punishment for rape is life imprisonment with or without whipping, however, the punishment for attempted rape is 14 years with or without whipping, with whipping happening only in the North.
An important question that is often asked is what happens when someone is falsely accused of rape. There is no known law that criminalizes false accusations of rape. This is because, on the one hand, victims of rape require the support of the criminal justice system due to the vulnerable nature of the offense and the stigma that comes with it.
False allegations on the other can also hurt the person wrongly accused.
In some quarters, it has been suggested that a law should be promulgated to cover false accusations of rape. I think this is a risky position because it would further stifle the already quiet voices of the victims.
To maneuver this, the Violence against Persons Prohibition Act criminalized any willful false statements in any judicial proceeding or false statements made with the aim of initiating a criminal investigation.
Secondly, the decision of the court in DPP v Morgan, provided that if an accused person pleads that he believed that the woman was consenting and he leads evidence to show the same, he can establish the defense of honest and reasonable mistake. This is so because, in rape, the intention to have sexual intercourse without consent must exist, and mistake proves that it doesn’t exist.
A third option to explore is the tort of malicious prosecution. This is an action for damages by a defendant who has succeeded in a civil or criminal cause instituted without probable cause. It is usually brought in response to baseless or malicious accusations.
However, it is important to note that before an action for malicious prosecution can be instituted, the claimant must prove that the prosecution was maliciously motivated, and judgment in the first case was determined in their favor. In a rape case, the nominal complaint on whose account the action was instituted without reasonable or probable cause becomes the Defendant in this action. and the Plaintiff must show that he was prosecuted and the criminal prosecution terminated in his favor.
Finally, the tort of defamation may also be explored. Broadly, defamation refers to false statements about a person communicated as facts to one or more persons, individual or entity which causes damage and does harm to the person’s reputation or standing in the community. It is the act of injuring a person’s character, fame, or reputation by false and malicious statements.
It is therefore imperative to take caution in this age of social media and massive online trial. You may just want to comment on an innocent post but the law requires a level of responsibility on the maker of a tweet or post and the target audience because online defamation is also actionable.
Ndam Nander Esmeralda
Thesmeraldabali @ gmail.com
Nysc associate