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It is important to state that culture is one of the sources of law in Nigeria. Nigeria is a patriarchal society in which prevailing cultural norms regard a woman as the property of her husband. As a result, once married, a woman has no right to deny her husband any form of sexual relations. Historically, marital rape is meant to serve as an exception to the offence of rape because it was believed that a woman cannot be raped by her husband.
Definition of rape
1. The criminal code Act defines rape as follows:
“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 threats or intimidation of any kind, or by fear or 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 personating her husband, is guilty of rape”.[i]
It is imperative to explain what “carnal knowledge” is. Section 6 of the Criminal Code Act explains it as follows:
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.
2. The Penal code that is applicable in the Northern part of Nigeria defines rape as follows:
“(1) A man is said to commit rape who … 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 the 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.
(2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty”[ii]
The definitions above presumes that rape can only be carried out by penetration of a vagina by a penis. In this age and time, where rape can be carried out by orally or through the use of foreign objects. It is important to also state that rape is not an offence against woman but humanity as men can also be raped.
3. The Violence against Persons (Prohibition) Act, 20215 gave a better definition of rape as follows:
“(1) A person commits the offence of rape if-
(a) he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else;
(b) The other person does not consent to the penetration; or
(c)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 and fraudulent representation as to the nature of the act or the use of any substance or addictive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.”[iii]
Is spousal rape an offence in Nigeria?
Marital rape refers to non-consensual rape sexual acts committed by a spouse against the will of the will of their partner.[iv] Despite this, under various legal definitions of rape in Nigeria, marital rape is not recognized as a criminal offence. Instead, it is treated as an exception to the offence of rape.
Recommendations
· One of the essential elements in proving the offence of rape is lack of consent. Consent must be affirmative, defined as “informed approval, indicating a freely given agreement” to engage in sexual activity. Lack of consent may arise from either forcible compulsion by the perpetrator or an inability to consent on the part of the victim (such as people who are asleep, intoxicated, or otherwise mentally compromised). Thus, the law should be amended to clearly state that any sexual act carried out without consent constitute rape. In the context of marriage, once a spouse does not consent to sexual activity and their spouse forces them to engage in such activity, it should be considered as marital rape.
· It is important that the Penal and Criminal Code Acts definitions of rape be amended to eliminate the gender sensitivity of the laws, so as to remove the double standard it creates against the male gender. The definition of rape should accommodate much more just than the penetration of the vagina with a penis. There should be a broadened definition of rape taking a clue from the Violence Against Person (Prohibition) Act.
· Marital rape should be criminalized in Nigeria.
Conclusion
In light of evolving societal norms and the dynamic nature of modern law, there is a compelling need to broaden the legal definition of rape. The increasing incidence of rape has reached an alarming level, posing a serious threat that demands urgent and decisive intervention. Given this reality, the government should thoughtfully consider the underlying reasons for proposed amendments to the law, rather than dismissing such suggestions as inconsequential. A more inclusive and contemporary definition of rape is essential to ensuring justice for all victims and addressing the growing crisis effectively.
[i] Section 357 of the Criminal Code Act in Nigeria
[ii] Section 282 of the Penal Code
[iii] Section 1 of the Violence Against Persons (Prohibition) Act, 2015
[iv] https://irepos.unijos.edu.ng/jspui/bitstream/123456789/3314/1/ARTICLE%209%20L.M.%20BULUS.pdf accessed on 19/02/2024
Written by Elizabeth Olalekan for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com