This article does not relate to offences committed against a minor because the law does not require the strict rule of consent. Under the Criminal Code of Nigeria, Rape is defined, 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. This offence is punishable by imprisonment for life, with or without caning.

A man cannot be raped under our laws.

1. Why do we need to understand and properly prove rape
In the case of Popoola v State
“the offence appeared to be heinous and heartless. The sentence meted out by the trial court amounts to abdicating its role as a judicial officer. I condemn such type of sentence. The sentence is unnecessarily lenient and loose”.
If rape is not properly proved. Sentencing could be outrageous.

2. Legal Requirement of “Penetration of the Vagina”.
It has been held in several legal and judicial authorities that for rape to be proved there must have been penetration of the vagina, even if slight.
The recent case of the women physically assaulted and brutally sexually assaulted by shoving sticks and ground pepper into their private parts is instructive, this occurred in the Ejigbo area of Lagos state, Nigeria.
This woman has not been raped under our laws and individuals that engaged in that act cannot be charged accordingly.

3. Mere Penetration of the Vagina is not sufficient without corroboration(It could be sexual intercourse and not rape)

In the THE QUEEN V FRANCIS KUFI, The Medical Officer, Dr Onifade examined the complainant and the accused. His evidence bears out the complainant’s story that she had had recent intercourse. He found a recently perforated hymen, and in his opinion, intercourse had taken place up to six days previously, if the parts had not been washed.
He found that the accused had a discharge and the complainant an infection of the vulva and the vagina. He gave the opinion that this might in both cases have been due to gonorrhea, but he could give no definite opinion. This evidence was not enough to establish rape.

4. Prove that the accused was responsible for the penetration
“If it was the accused who tore it and the Doctor did not say so - it means that there was penetration. On the other hand if the hymen had already been torn before that day, penetration would be naturally easier, and there will be no cause to doubt that the penis was inserted into her vagina as testified by the prosecutrix. It was not enough that the prosecutrix alleged the insertion of the accused’s penis Into her vagina or that he lay on her except the penetration can be linked to the accused.

5. Because a witness saw you ontop of her screaming is not even sufficient enough to prove rape
If evidence of a witness has only a limited probative value in corroborating the prosecutrix’s story that the accused was on top of her but not as corroborating the actual act of penetration; If all the witness said on the point was: ‘When I saw the accused on top of X as he was apparently having canal knowledge of her, I saw Rose shaking her legs in resistance.” It cannot stand.

The World Health Organisation (WHO), in 2002, defined Rape as “physically-forced or otherwise coerced penetration, even if slight, of the vulva or anus, using a penis or body parts or an object”.
The Federal Bureau of Investigation in 2012 went a step further to include as a part of the list oral penetration, likewise, the International Criminal Court Tribunal for RWANDA described rape as “physical invasion of a sexual nature committed on a person under circumstances which are coercive”
We hope our law makers adopt this definition into our laws to remove the bottleneck involved in proving rape.

Ojo Edowmonyi Charles
Mackstokes Partners

Whatchu talking bout?

Generally, it has been agreed legally that in any allegation of rape, the absence of ‘consent’ to sexual intercourse on the part of the victim is critical.[1]

However, lack of consent may result from either forcibly compulsion by the perpetrator or an incapacity to consent on the part of the victim.

Thus, a thorough perusal of the available statutory provision of rape displayed the word ‘consent’ rigorously, which signifies the importance of the word consent in order to adjudicate on rape cases in court. As such, the privacy of consent in rape is justifiable or else innocent accuse will be punished, while the main guilty accuse might be acquitted in court.

However, consent shall be defined on the basis of ‘free agreement’ involving a ‘voluntary’ agreement between two parties to engage in sexual intercourse. The essence of ‘free agreement’ is that sexual encounters should involve communication of desires, likes and dislikes in the absence of force, coercion or fraud.

Scope of Study

This essay would be limiting its scope in relation to statues to the Criminal Code, Penal Code, Sharia Panel Code, Criminal Procedure Code, Criminal Procedure Act, the Constitution of the Federal Republic of Nigeria and other specific regulations. It however doesn’t set out to discuss the whole body of these regulatory laws but rather the obsolete penal provisions in those laws. In other areas like analysis, concepts, theories, judgments and references, the geographical spread of the thesis; it covers Nigeria though references are made to other jurisdictions like Britain, United States of America where necessary.


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