By Mike Ozekhome

INTRODUCTION

There is an upward upsurge of increase of rape case in Nigeria; and there seems to be no end to the menace. There is no day in the country without a reported case of sexual violence, especially rape. Sexual violence victims are also becoming more emboldened in reporting such crimes. We have however seen cases of young ladies attempting to make a career of tagging celebrities and politically exposed persons (PEP) with false rape accusations. Such must be discouraged. Today, we shall continue our discourse of this vexed issue from the angle of the criminal laws governing rape.

THE CRIMINAL CODE ACT (continues)

What the Criminal Code Act insists on is consent between two willing adults, devoid of any fraud, deceit, force or threats. The law contemplates free, express and unequivocal consent from a woman (even if married), before any man can have sexual relations with her. Thus, whenever a man has sexual intercourse with a woman with her consent, but which was obtained fraudulently, deceitfully, or forcefully, or without her consent at all, the crime of rape would be deemed to have occurred.

Section 358 of the Criminal Code imposes the maximum punishment of life imprisonment, with, or without caning, on any person convicted of rape.

Section 359 of the Criminal Code (CC) also criminalizes attempted rape:
“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.”

Section 360 CC also criminalizes “indecent or unlawful sexual assault” on a woman, thus:
“Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour, and is liable to imprisonment for two years”.

From the above, it is clear that rape is not only immoral, but also illegal. However, the CC definition of rape is now grossly inadequate in the light of contemporary trends. This is because it does not contemplate spousal rape, or a situation whereby a woman withdraws consent midway through sexual intercourse (post-penetration rape). The CC also fails to contemplate the possibility of men being subject to rape by women. The CC should therefore be amended to accommodate the more recent dimensions to the crime of rape.

RAPE AND THE VIOLENCE AGAINST PERSONS PROHIBITION ACT, 2015 (VAPPA).

Section 1 of the Violence Against Persons Prohibition Act, 2015 (VAPPA) provides:
“A person commits rape if:
He or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his body or anything else.
The other person does not consent to the penetration; or
The consent is obtained by force or 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 use of any substance or additive capable of taking away the will of such person or in the case of a married person, by impersonating his or her spouse.”

The above definition of rape is more comprehensive and represents the modern trend. Specifically, the Act for the first time in Nigeria, recognizes the possibility of men being victims of rape, through the “anus or mouth”. With another person’s “part of (his) body or anything”. The VAPPA also widens the scope of rape by going beyond vaginal rape to criminalize anal and oral rape.
Similarly, VAPPA expands the scope of rape beyond penile or penis penetration alone. Other avenues of penetration are now recognized to include vagina, anus or mouth which could be “penetrated” without a man or woman’s consent. This could be done by means of a penis, cucumber, dildo, vibrator, strap on, stick, etc. In such cases, rape would be said to have occurred.

Section 1(2)(c) of VAPPA also criminalizes and punishes the act of “gang rape” for a minimum of 20 years’ imprisonment

Section 1(3) of VAPPA has a novel provision for compensation of rape victims; while section 1(4) provides for the publication of a register of convicted sexual offenders, which shall be open to members of the public. The essence of this provision is to create a culture of shaming convicted rapists, so as to deter intending rapists and warn members of the public to be wary of them.

Despite the novel and revolutionary provisions of the VAPPA, it does not have a nationwide application. In fact, as at 2018, the then Minister of Health, Professor Isaac Adewole, declared that only three states in Nigeria, (Anambra, Ebonyi and Oyo) States had domesticated the Act. This means these are the only states in which these provisions apply.

THE PENAL CODE ACT
The Penal Code is the criminal law that applies to the Northern part of Nigeria, and the FCT, as against the Criminal Code, which operates in the Southern part. Section 282 of the Penal Code (PC) defines the crime of rape thus:
“(I) A man is said to commit rape who, except in the case referred to in subsection (2) of this section, has sexual intercourse with a woman in any of the following circumstances-
(a) without her consent;
(b) against her will;
(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.”

The above provision merely restates the CC position in the with some omissions. The most glaring omission in the definition of rape under the PC as against the CC is that under the PC, unlike the CC, sexual intercourse with an unmarried woman’s consent, but which was fraudulently obtained, is not viewed as rape.

Under the PC, even where the girl is the wife of a person, such person will still be guilty of rape if she has not attained puberty. The case of the former Governor of Zamfara State who allegedly married a 13 year old girl from Egypt comes in here. In such instance, since the girl had not attained puberty and he had carnal knowledge of her, he would have been guilty of rape if he had been charged to court after shedding his gubernatorial immunity under section 308 of the Constitution.

Similarly, just like the CC, the definition of rape under the Penal Code is limited and does not accommodate some more recent global strands of rape and sexual violence. To this end, it is recommended that both the CC and PC should be amended to cater for some of these contemporary trends.
Section 258 of the Criminal Laws of Lagos State has similar provisions.

In all three laws, rape is narrowly constrained as occurring only when the vagina of the woman is penetrated (“res in rem”). This was judicially held in NATASHA V. STATE, thus:

“The most important and essential ingredient of the offence is penetration. The Court will deem that sexual intercourse is complete upon proof of penetration of the penis into the vagina. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse.”

THE CHILD’S RIGHTS ACT, 2003.

Section 31of the Child’s Rights Act provides as follows:
(1) No person, shall have sexual intercourse with a child.
(2) A person who contravenes the provision of subsection (1) of this Section commits an offence of rape and is liable on conviction to imprisonment for life.
(3) Where a person is charged with an offence under this Section, it is immaterial that:
(a) the offender believed the person to be of or above the age of eighteen years ; or
(b) the sexual intercourse was with the consent of the child.

From the above definition, any sexual intercourse with a child would be categorized as rape. It is a strict liability offence. It makes no difference that the child consented to such sexual intercourse.

This is because a child is not legally empowered to consent to sexual intercourse. The fact that the offender believes that the child was above the age of eighteen will not exculpate the offender. Thus, it makes no difference that the child looks bigger, older or more mature than his or her age. What is material is that the child is less than eighteen years; and any sexual intercourse with such a child would amount to rape with the attendant punishment of life imprisonment under the Act.

The Act is clearly a protectionist legislation aimed at shielding children from adult sexual predators. The Act also lacks nationwide application. In fact, as at 2019, Chief of Field Office, UNICEF Nigeria, Bauchi Field Office, Mr. Bhanu Pathak, lamented:

“Only 25 states have enacted the law so far. The states which are yet to domesticate the Child Rights Act are from the northern part of Nigeria. I call on all these states to domesticate the Nigeria Child Rights Law to provide a legal framework for the protection of the rights of children in their respective states.”

Accordingly, 11 States in Nigeria are yet to domesticate the Child’s Rights Act. Going by UNICEF statistics, the eleven states yet to ratify the Child Rights Act are Adamawa, Bauchi, Borno, Gombe, Jigawa, Kano Katsina, Kebbi, Yobe, Sokoto and Zamfara States. Why? To continue endanger our innocent children? Haba!

HOW NIGERIAN COURTS DECRY RAPE

The severity of the offence of rape is one that cannot be overemphasized. Nigerian courts frown on it seriously. In Popoola v State (2013) 17 NWLR (PT 1382) 100, the apex court illuminated:

“the offence appeared to be heinous and heartless. The sentence meted out by the trial court amounts to abdicating its role as a judicial officer. I condemn such type of sentence. The sentence is unnecessarily lenient and loose”. The apex court went on:

“I join my learned brother in expressing disappointment that the appellant was given a lenient term of five years in prison. I think that the severity of punishment for rape, with particular reference to statutory variety, should rank next to capital punishment”
(To be continued)

FUN TIMES

“I saw dad with mom last night….. I think he was stealing my milk”. – Anonymous.

THOUGHT FOR THE WEEK
Rape, mutilation, abuse, and theft are the natural outcome of a world in which force rules, in which human beings are objects. (Chris Hedges).