This short write up discusses succinctly everything we need to know about rape as an offence in Nigeria, it starts by examining the various statutory definitions of rape, how the offence of rape is proved, the punishment and the consequences of rape to the victim, family and the nation at large. The purpose being soley to help the reader have a thorough and sharp understanding of the position of the law on rape in Nigeria.
Definition of Rape
Rape is generally defined as Unlawful Sexual Intercourse with a female without her consent. Under the Criminal Code Act applicable in the southern part of Nigeria, Rape was defined in Section 357 As an act of 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.
It is worthy to note that this definition has been expanded following the enactment of the Violence Against Persons (Prohibition) Act 2015 (VAPPA 2015). Under Section 1 of VAPPA 2015, a person can now be said to have committed the offence of rape if under Subsection 1.
(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 additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse. By this new definition, a woman can now be guity of rape. This can be seen in the definition stated above where by virtue of Section 1 subsection 1 paragraph (a), a ‘she’ can be found liable if she penetrates the body of another person using a part of her body or any other object. This is a deviation from what was provided by the criminal code where only a male person can be guilty of the said offence.
Essential Ingredients for a Successful Prosecution of Offence of Rape in Nigeria
There are two most essential elements that is required to successfully convict one of rape in Nigeria. Firstly, It has been established in plathora of Cases that consent to sexual Intercourse negatives the offence of Rape, in other words, once it has been proved that the prosecution (compliant) in question gave her consent for the accused to have carnal knowledge of her, then there is no rape. Conversely, lack of consent is an essential element the prosecution need to prove in order to succeed in a charge for rape. 1Sunday Jegede v The State  14 NWLR (pt. 733) 264
It is pertinent to note that on a charge for rape, 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.
Succinctly, another important element for a successful conviction of a defendant for rape is that there must be ”penetration”. But penetration however slight is sufficient and it is not necessary to prove any injury or the rupture of the hymen to constitute the crime of rape. 2See the case of Okoyomon v the state  1 NMLR.
Nevertheless, it needs to be stressed that defendant must have exhibited the required mental element necessary to prove a charge for rape. Under Section 1 of VAPPA 2015 for instance, the required mental element is that the act must have been done ”intentionally”.
Parties to the Offence of Rape in Nigeria
We have noted before that the person who penetrates the vagina or anus of another person without his or her consent is guilty of rape. Under our criminal code act, the person who did the act that constitutes the offence will be liable for the offence as a principal offender. Anybody who aids or procures him will be liable as a principal also, as if such procurer or aider did the act himself. This is captured in section 7 paragraphs b, c and d of the criminal code act.
Again, we must take note of the changes in the provisons of the law with regard to the liability of children under the age of 12. In the criminal code act, a child who is twelve (12) years and below is incapable of commiting rape (Section 30). However, under the VAPPA 2015, such a person can now be held liable except that the punishment is lesser than that given to an adult. Section 2 of VAPPA 2015 states as follows:
(a) where the offender is less than 14 years of age, the offender is liable to a maximum of 14 years imprisonment;
(b) in all other cases, to a minimum of 12 years imprisonment without an option of fine.
There is something we need to know about a person who aids another person to commit rape under Section 7 paragraph C. Here, it is pertinent to ask, whether the aid given after penetration is sufficient to make one guilty of the offence. It then means that any aid given after the first penetration but while in the process of sexual Intercourse makes the aider a party to the offence. In R v Mayberry3  Qd. R. 211, M and D where convicted for rape committed by M. The allegation against D was that he was an aider and he prevented the victim’s friend from going to her friend (the victim) to help. D’s aid came after M has achieved penetration but while in still in the act of sexual Intercourse. 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.
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Punishment for Rape and Attemped rape in Nigeria
The criminal code defined the punishment for rape by virtue of 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.
A person can be said to have attempted an offence by virtue of Section 4 of the criminal code act as 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.
Nevertheless, on a general note, the punishment for rape has been stated under Section 358 of the criminal code act as life imprisonment with or without canning. Under the VAPPA 2015, viz a viz Sections 2, 3 and 4, a person found guilty of rape will be sentenced to life imprisonment, court will award appropriate remedy to the complaint and there is now a register for persons convicted for sexual offences, accessible to the public.
Can a husband rape his wife?
The term unlawful carnal knowledge has been defined in section 6 of the criminal code act 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.
However, with the enactment of the VAPPA 2015, This position in the Criminal Code act has been seriously questioned as that particular section 6 was not expressly replicated anywhere in the VAPPA 2015.
Burdern and Standard of Proof of the Offence of Rape in Nigeria
In Okeke v State4  12 NWLR (PT 697)3795, it was held that the burden of proof commission of crime by virtue of section 135 subsection 3 is on he who asserts that a person committed an offence in question (usually the prosecution).
Going by the same section, the standard of proof is beyond reasonable doubts. 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. On the requirements for warning and corroborative evidence in proof of sexual offences, the current position of the law is that the judge need not to warn itself of danger of convicting an accused person for rape without corroboration. This position is supported by the case of Ofordike v the state. Thus, that old position in Section 175 of the old evidence act, 2004 has been removed from the Evidence Act 2011.
Harmful effects of Rape on its victims
The offence of rape is violent in nature and leaves the victim in a state of physical and mental trauma. . In some cases, death may occur or the victim is infected with Human Immune Virus (HIV), the virus that causes the disease; Acquired Immune Deficiency Syndrome (AIDS). In some other cases, there might be the issue of unwanted pregnancy.
Mazza D and Donnestein L has this to say 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 conclusions, this write up has successfully defined rape, ingredients necessary to prove the offence of rape, how it should be proved and parties that can be involved. However, as a way of general remark, it must be mentioned here that prosecution of persons found to have committed the offence has been slow in Nigeria, this is because, most times, because of prestige of the offender or family background, the victim may choose to keep silent. It must also be mentioned that with the increasing number of rape incidents in this COVID-19 pandemic, there should be a legislative intervention to provide a statute that will aim at reducing thb increased rape incident.
Hope this article was helpful? If you want to ask any more question on the offence of rape in Nigeria, kindly send your questions using the comment section. Accordingly, you can employ the services of our experienced lawyers in Nigeria below. Kindly send us a mail below.
References [ + ]
|1.||￪||Sunday Jegede v The State  14 NWLR (pt. 733) 264|
|2.||￪||See the case of Okoyomon v the state  1 NMLR.|
|3.||￪|| Qd. R. 211|
|4.||￪|| 12 NWLR (PT 697)379|