What To Know About Rape Laws In Nigeria: The Way Forward!

Rape is best regarded as “having 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 threats or intimidation of any kind, or by fear of harm, or by means of false act or, in case of a married woman, be impersonating her husband”.

Consent is very important when it concerns cases of rape. If a man deceives a woman and she gives her consent that will amount to rape.

LAWS THAT REGULATES RAPE IN NIGERIA

• The Constitution

• Criminal Code (Applicable in Southern Nigeria

• Penal Code (Applicable in Northern Nigeria)

• Violence Against Person’s Act (Applicable in only the states it has been passed to law e.g. Abuja).

• Child Rights Act

1. THE CONSTITUTION OF NIGERIA 1999 (AS AMENDED 2011)

Chapter IV of the Constitution deals extensively with fundamental rights. Section 34(1) of the Constitution provides that ‘Every individual is entitled to respect for the dignity of his (her) person and accordingly (a) no person shall be subjected to torture or to inhuman or degrading treatment’.

2. CRIMINAL CODE (SOUTHERN NIGERIA)

A person has committed rape when he has sexual relations (Carnal knowledge) with a woman against her will; or

a) without her consent or,

b) while putting her in fear of death or hurt or,

c) misrepresenting as the husband of the woman or,

d) having Carnal Knowledge of a girl under 14 years, with or without her consent or,

e) having Carnal Knowledge of a girl with unsound mind Section 357 and 358 of the Criminal Code Cap “C38”.

Section 358 provides for punishment for rape under the Criminal Code

•  Rape is Imprisonment for life.

•  Attempted rape is 14 years imprisonment.

•  Unlawful and Indecent Assault of a woman or girls is 2 years imprisonment.

• Unlawfully detain a woman against her will with intent to marry her is liable to

imprisonment for 7 years Imprisonment.

To unlawfully take an unmarried girl under the age of sixteen years out of the custody or protection of her father or mother or other person having the lawful care or charge of her, and against the will of such father or mother or any other person, is liable to imprisonment for 2 years.

3. PENAL CODE (NORTHERN NIGERIA)

Section 268 under the Penal Code defines rape as when a man has sexual intercourse with a woman against her will, without her consent, or with incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained:

• by putting her in fear of death or hurt

• by a person impersonating a married woman’s husband in order to have sex.

Under the Penal Code, sex with a girl under 14 years of age or who is of unsound mind is rape, irrespective of whether there is consent. However the Penal Code, explicitly states that sexual intercourse by a man with his wife is not rape.

4. VIOLENCE AGAINST PERSONS AND PROHIBITION ACT (VAPPA)

The VAPPA 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. . Consent can be incorrectly obtained where it is obtained:

•  by force/threats/intimidation

•  by means of false and fraudulent representation as to the nature of the act,

•  by the use of substances capable of taking away the will of that person

•  by a person impersonating a married woman’s husband in order to have sex.

The VAPPA seems like a very progressive piece of legislation. Unfortunately, the law is only applicable in the FCT, Abuja and few states that have decided to enact it as their law.

From the foregoing, it would be observed that there is an expansion on the definition of rape and its prohibition. While other laws may have restricted their definition of rape to protect only females in relation to vaginal penetration without consent the Act has taken a giant leap by expanding the meaning and scope of rape. Going by the definition of rape in the Act, we would discover that both males and females can be raped and are protected by the Act.

The provisions of the Act has also taken a progressive stance by recognising that sex now goes beyond the use of the primary sexual organs and extends the scope to anus and mouth. This is another success because in time past in Nigeria it was difficult to bring forceful anal or oral sex under the umbrella of rape as such was not part of our laws.

Another interesting point is that penetration here need not only by the sex organ (penis) of the offender but by any art of his body or anything else. This is an improvement on the Criminal Code Act and Penal Code that requires sexual intercourse. Again, consent must have been vitiated or was obtained by force or threat of use of force or intimidation or deceit including impersonation. Sanction for the offence of rape is adequate but for gang rape, the penalty should be for life too. Leaving the issue of compensation at the discretion of the court appears superfluous. The Act should have stipulated a minimum amount which would allow the judges to award compensation that will be punitive against the offender as this would serve as a deterrent to others.

Maintaining a database of sexual offenders is a laudable step but we are yet to see how this will play out as record keeping appears to be a herculean task for the nation.

---

LEGAL REFORMS IN NIGERIA THAT COULD FOLLOW THE UNDER LISTED PATTERN

a) Broadening the Definition of Rape as has been done by the VAPPA 2015 and ensure that more states enact it has their law;

b) Reforming the Rules on sentencing and on the Admissibility of Evidence. Where an offence attracts life imprisonment such should be handed down without modification, conditions or qualifications. The punishment should be uniform throughout the country;

c) On Sexual Defilement of Children, which is on the rise in Nigeria, the National Assembly and the various States Houses of Assembly should strengthen and enact laws against Child Molestation. Every State should enact their Child Right Law and Courts should have the will to punish paedophiles. The enforcement of the laws will curb the resort to sentiment and pressure which allows suspects to go and settle with the family of the victim.

d) The Police should as a matter of necessity establish a desk dedicated to the crime of sexual violence in every station all over the country and officers should be trained especially in the area of investigating such deviant behaviour as Sexual Violence in whatever form it presents itself is dangerous for the nation.

This article was written by Israel Ademola Ogunniran ESQ for Ejaosan Foundation in response to the spike in sexual violence and rape cases in Nigeria.