RAPE LAW: the Nigerian and British Perspectives.
This article adumbrates the British and Nigerian laws on rape as well as the lacunae in the Nigerian provisions on rape -Criminal and Penal Code. The writer further elucidates on the provision of the Violence Against Person Prohibition Act (VAPP) Act which incorporates the provision of the amended British provision on rape. The writer concludes with
Rape is one of the most serious and heinous crimes of violence one person can commit against another. It constitutes a violation of a person's fundamental human rights and freedoms. Most crimes of rape are not reported for reasons such as: social stigma attached to the victim; the fear of being ostracized from the family or the community; and also the fact that the police may be unwilling to make an official report due to insufficient evidence. Even when reported and the accused is not convicted at the end of the trial, the victim is made to feel condemned and looked down upon.
RAPE LAW IN BRITAIN (England and Wales)
The current British law on rape is contained in the Sexual Offences Act, 2003 which came into force in May 2003. Prior to this moment, consent, belief in consent and problems relating to proof of consent made it difficult for the prosecution to secure a conviction. This was because the previous law on rape as contained in the Sexual Offences Act was described as 'archaic, incoherent and discriminatory.' As a result of the introduction of this Act, there had been a lot of changes in the British Rape law. Some of the major changes include:
▶Definition of rape.
One of the major changes in the 2003 Act was the redefinition of rape from "non consensual vaginal or anal intercourse" to "non consensual penile penetration of the vagina, anus or mouth." By extending the meaning of rape to include non-consensual penile penetration of the mouth, the Act recognises that the penile penetration of the mouth of the victim can equally be traumatic and repulsive as the other forms of penile penetration.
▶Meaning of Consent.
Under the 1959 Act, there was no statutory definition of consent and juries had to be directed in cases to give interpretation to the word 'consent'. Different jurists had different conceptions of the word 'consent' and this caused a lot of criticisms as a result of the inconsistencies which arose from the discretion left to the judges. Following this, statutory definition of consent arose under the 2003 Act which now clearly states the meaning of consent. It also further strengthens the law on rape. The Act defines consent as a situation where a person "agrees by choice, and has the freedom and capacity to make that choice."
Some other major changes brought by the Act includes: reasonable belief in consent; evidential presumptions and conclusive presumptions.
RAPE LAW IN NIGERIA.
The current provisions relating to rape under the Nigerian laws are very inadequate and archaic and need to be changed to meet up with various situations in today's modern society. They are not gender neutral and are drawn as such that only a woman can be raped and for that reason, Okagbue describes them as "a gender oriented crime". The law of rape applicable in Nigeria is dependent on where it is being applied i.e. in what part of the country. If it is in the southern states of the country, the criminal code applies while if it is in the northern part, the penal code applies.
The position of the Criminal Code.
Section 357 of the Criminal Code provides thus:
"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 of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of an offence which is called rape."
The prosecution must prove carnal knowledge. Section 6 of the Code provides that:
"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."
The slightest penetration of the vagina by the penis is sufficient. It is not necessary that the hymen was ruptured or that there was ejaculation. The Code does not recognise that penetration of a woman or girl's anus or mouth could be equally as traumatic as that of the vagina and that it should be considered as one of the elements, which may constitute rape.
Only a woman or girl may be raped as far as the wordings of the Code suggest. Even though in this day and age, there have been cases of men claiming to be raped, the Criminal Code Act does not take cognisance of this fact. Neither does the Criminal Code Act cover transsexuals. According to section 30 of the Criminal Code Act, a male person under the age of 12 years is presumed to be incapable of having carnal knowledge. This is an irrebuttable presumption, which means that he cannot be guilty of the offence of rape or attempted rape, even if it is shown that he has reached puberty despite his age. He may, however, be convicted of indecent assault.
The position of the Penal Code.
As already mentioned, the Penal Code Act applies in the Northern States of Nigeria. It is applicable to both Muslims and non-Muslims.
Section 282(1) provides thus:
"A man is said to commit rape who … has sexual intercourse with a woman in any of the following circumstances:-
Against her will
Without her consent.
With her consent when her consent has been obtained by putting her in fear of death or of hurt.
With her consent when the man knows that he is not her husband and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
With or without her consent when she is under fourteen years of age or of unsound mind."
Although a woman cannot commit rape under the penal code Act, she may however be charged by the prosecution with abetting rape under section 83 of the code. Mere penetration under the Penal Code Act is sufficient to constitute the sexual intercourse necessary to the offence of rape. Cases under the Penal Code Act shows the importance the courts attach in providing evidence of penetration to a charge of rape. However, the definition of rape under the Penal Code Act is narrower than that under the Criminal Code Act in the sense that where the latter uses the term "carnal knowledge" implying that penetration of the vagina could be done by penetration of a foreign object, the term "sexual intercourse" under the Penal Code Act implies that only a penis can penetrate a vagina. The Penal Code Act does not define what consent is but describes what consent is not. Even then, it goes without saying that absence of consent from the victim is an essential ingredient to a charge of rape. The consent must not be obtained by force, fraud or misrepresentation. Apart from the various instances which the sections list as to what would not constitute consent, it is interesting to note that rape is still committed even where a girl who is under 14 years of age or of unsound mind consents. The Penal Code Act also makes specific provision in relation to children under 16 years of age, who have been sexually assaulted by those in positions of authority. Section 283 provides that any consent given by the girl under the age of 16 to her teacher, guardian or any person entrusted with her care or education is not valid consent. The prosecution will still need to prove lack of consent in those situations where the girl is between 14 and 16 years of age and the consent is not given to her teacher, guardian or any person entrusted with her care. Whereas a male person under 12 years old is presumed incapable of having carnal knowledge under the Criminal Code Act, no such provision is made under the Penal Code Act. There is, therefore, nothing to stop the prosecution from charging a child over 7 years of age, for example, for rape if it can be shown that he has attained a sufficient maturity of understanding to judge the nature and consequence of his act.
The Offence of Rape under the Violence Against Persons Prohibition Act.
In response to the uproar caused by the leakages in the Criminal code and the Penal code and after several consultative summits, the Violence Against Person's Prohibition (VAPP) Act was enacted in 2015. This Act closed a lot of lacunae in the Criminal and the Penal Codes. For instance, while the Criminal Code provides only for vaginal and anal penetration as only constituting rape, the VAPP Act extended it to oral (mouth) penetration. Also, the Criminal code restricts rape to penile penetration alone, the VAPP act extended it to the use of any other part of a person's body or the use of any other thing. Section 1 of the Act provides thus:
"A person commits the offence of rape if-
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,
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 and fraudulent representation as to the nature of the act or by 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."
The Act also makes provisions for punishment for the aforementioned offense in section 2 thus:
"A person convicted of an offence under subsection (1) of this section is liable to imprisonment for life except:
where the offender is less than 14 years of age, the offender is liable to a maximum of 14years imprisonment."
In all other cases, to a minimum of 12years imprisonment without an option of fine or in the case of rape by a group of persons, the offenders are liable jointly to a minimum of 20years imprisonment without an option of fine.
It could be seen that the enactment of the VAPP bill is an 'heralded victory' which came at the right time and brought along some amendments in the Criminal and the Penal codes, thereby strengthening the rape law in Nigeria.
