In this article, i will extensively discuss the offence of rape in Nigeria. Basically, we will be looking at the definition of rape according to the Code, proof of the offence of rape, punishment and the consequences of rape to the victim, family and the nation at large. In addition to that, I will disclose how the offence of rape is proved in court. Trust me; this is the best article on the offence of rape in the internet. I enjoin you to read painstakingly as I carefully discuss everything about rape in Nigeria.
An offence is an act or omission which renders the person doing the act or making the omission punishable by some legislative enactment. This averment is in conformity with section 36 (12) of the 1999 constitution of the federal republic of Nigeria.
Rape is defined as Unlawful Sexual Intercourse with a female without her consent. Section 7 of the Criminal Code Act cap 77, laws of the federation of Nigeria, 1999 defines rape thus:
“Any person who has unlawful carnal knowledge of a woman or knowledge of a girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats of intimidation of any kinds or by fear of harm or by false and fraudulent representation as the nature of the act, or in the case of a married woman by personating her husband is guilty of an offence called rape”
The fact of sexual Intercourse is committed when the woman’s resistance is overcome by force of fear or under other prohibitive condition. In the charge of rape, absence of consent is very important and the prosecution has to prove that the accused had carnal knowledge of a woman or girl, despite her age, without her consent.
It is no excuse that the complainant is a common prostitute, that she has consented to Intercourse with the accursed at some other times, or that she is accused mistress. But these facts may make the court reluctant to believe the complaint’s denial of consent.
Parties to the offence of rape in Nigeria
A person may participate in the crime of rape in two ways. He or she may personally perpetrate the actus reus or a part of the act of crime. That is, his or her personal act is the most direct human cause of the commission of thise offence. In this situation the person may be referred to as the principal offender
When the offence of rape is committed, the criminal law does not confine itself to the person who actually did the forbidden act. Those who instigated, procured or aided the commission of the offence are in such social dangers as the man who committed the offence and they are treated as parties to it.
The common law incriminates a secondary participant, in the principal, that is, the law deems the secondary participant to be guilty of the principal’s offence and exposed this party to publishment as if he or she had committed it personally. This secondary participant may be referred to by the generic title “accessory“. In criminal law there cannot be accessories without a principal.
Blackstone defined the common law offender as accessory after the fact as being the person who “knowingly a felony to have been committed, receives, comfort or assists the felon”. Generally, any assistance given to a felony, to hinder his being apprehensive, tried, or suffering punishment, makes the assist or an accessory after the fact.
One can be guilty of an offence and be liable to the punishment of the offence if one falls under any of the categories provided is section 7 of the code. The inference one can draw is that statutory immunity accorded by the criminal code, which makes boys under the age of 12 years to be incapable of committing rape can be disregarded if the offence falls under the provision of section 7 of the criminal code.
When section 7(c) is considered, it is pertinent to ask whether aid given after penetration is sufficient to make one guilty of the offence. It then means that any aid given after penetration makes the aider a party to the offence. In R v Mayberry (1973) Qd. R. 211, M and D where convicted for rape committed by M.
The allegation against D was that he was an aider and his prevented the victim’s friend from going to her friends help. D’s aid came after penetration had taken place. D was held liable. Hanger C.J’s opined that rape though complete upon penetration, continues as long as the accused carries on with Intercourse, and so any aid given after penetration would make the aider liable as a principal offender.
Can a boy or man be raped?
Going by the provisions of section 7 of the Criminal Code Act cap 77, Laws of the Federation of Nigeria, 1999, rape is gender specific and as such cannot be committed by a woman or girl though they may be guilty under section 7(c) of the code. Based on this a boy or man cannot be raped.
This can be seen in R v Ram. In this case, a wife was convicted as principal in the second degree for rape. This arose as a result of the offence of rape committed by the husband against their maid.
Punishment for Rape and Attemped rape in Nigeria
The criminal code defined the offence of rape in section 359. It states that any person who attempts to commit the offence of rape is guilty of a felony and is liable to imprisonment for 14 years with or without whipping.
When a person tending to commit an offence, begins to put his intentions into execution by means adopted to is fulfillment and manifest his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is said to commit the offence.
In rape cases, all cases of unlawful sexual Intercourse evidence of penetration only, without emission is sufficient proof. In R v Marden (1891) 2 QB 144, penetration of the slightest kind is sufficient and if non penetration is proved, the prisoner, accused may be convicted of rape.
Thus, the rubbing of the entrance to the Vagina with the penis causing ejaculation is not rape, nor is anal or oral sex (buggery and fellatio).
Can a husband rape his wife?
The term unlawful carnal knowledge has been defined in section 6 of the criminal code as “Intercourse otherwise than between husband and wife”. Thus, a husband cannot be guilty of the offence of unlawful carnal knowledge of his wife.
He cannot commit rape on his own wife. This rule is not restricted to the parties to a statutory marriage, but includes husband and wife of customary law marriage. Where the existence of Christian marriage is a constituent element of defence, it clearly specify in provisions of the criminal code Act. But this privilege or immunity is of limited effect.
If the marriage has been dissolved or if a competent court has made a separation order containing a clause that the wife be no longer bound to cohabit with her husband then the implied consent to Intercourse given by the wife at marriage is thereby revoked and while the order is in force it will be rape for the husband to have Intercourse with the wife without her consent.
How can rape be proved?
In Okeke v State (2001) 12 NWLR (PT 697)379, it was held that the burden of proof of crime by virtue of section 138 of the Evidence Act, if the commission to a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
If the prosecution provides the commission to a crime beyond reasonable doubt, the burden of proving is shifted onto the accused. In the case of rape, the prosecution has to establish that the accused had carnal knowledge of the prosecution in the sense that there had been penetration as required by section 6 of the criminal code without her consent.
It is not easy to prove lack of consent in rape where adults are involved or when they have lived together for number of months. The requirements for warning in sexual case when lack of consent is in issue is because of the belief that at times women could fabricate these sexual assaults out of either spite, Jealousy or revenge.
Corroborative evidence is the additional, independent, confirming evidence in certain cases either by law or practice in order to render a composite evidence reliable and acceptable to convict an accused person.
Section 175 of the Evidence Act makes provision for requirement of Corroborative evidence mandatory in sexual offences such a defilement of teenage girls between the ages of 13 and 16 years or procuring the defilement of women by force, threat, fraud or drug before a person accused of these offence can be convicted.
However, in Oke v The Republic (1967) NWLR 69, it was held that the silence the accused person when the complainant pointed him out to the police as the person who had defiled her was not sufficient corroboration.
The effect of this case where said to be unique since silence may amount to corroboration.
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Consequences of the offence of rape in Nigeria
The offence of rape is violent in nature and leaves the victim with physical injuries experienced. The difference forms of physical injuries, black eyes, lacerations, fracture and fear. In some fatal cases death especially in these days of Human Immune Virus (HIV) the virus that case the disease Acquired Immune Deficiency Syndrome (AIDS).
Mazza D and Donnestein L siad thus about the experience of rape victims:
“Women experience a range of health and social problems in association with rape including depression, anxiety and to some pregnant ones, pregnancy complications“.
In a situation where a victim of rape in the family became pregnant and the family wants to get rid of the pregnancy. This is called abortion and it is a criminal offence in Nigeria.
The family feels with empathy as a member in Alexandria one of the Johnanne-suburg’s most dangerous suburbs in South Africa, where two women were raped by a 30 man gang on Easter day.
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There has been a lenient approach adopted by some judges in sentencing in rape. In Okeke v state, the court of Appeal reversed the conviction of rape by the lower court to attempted rape. Rape cases are usually difficult to prove. But Malland assistant District Attorney United State has stated that
“In the cases circumstantial evidence is even better than direct evidence because it does not rely on one set of eyes or one person”
In order to successfully prosecute the offender for the offence of rape in Nigeria, those relevant sections need not be joined with the resultant confusion in providing each section; ingredient which must be proved before the guilt of the accused can be established.
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