On May 25th, 2015 the past President of Nigeria, Dr. Goodluck Ebele Jonathan recorded a milestone when he signed into law the Violence Against Person (Prohibition) Act 2015, bringing to a successful conclusion the long awaited social and legislative advocacy championed by women’s group and gender activist towards the passage of the law that will indeed protect the girl child and women from all sort of abuses. This work seek to ascertain the legal position of the offence of rape, taking into account the various legislative enactments in Nigeria particularly the Violence Against Person’s (Prohibition) Act 2015 vis-a-vis other legislations such as the Penal Code, Criminal Code, Child Right Act, Evidence Act and Decided Cases by taking a look at the legal framework of the offence of rape and its punishment. This work sets out recommendation and suggestions on legislative drafting to be couched in a way the offence of rape will meet up with modern day sexual gratifications without leaving any lacuna and or saving clause for the offenders of rape. It undertakes a critical appraisal of the offence of rape under the Violence Against Persons (Prohibition) Act.

Each year, millions of people are raped or otherwise, sexually abused. Research has shown that young people are prime target. The offence of rape means different things to different people and many have argued as to what the offence entails. The offence however cannot be disputed that it is an occurring event in society. Beforehand, the offence of rape did not enjoy this much attention it is enjoying now, this is because the media does not report the offence of the crime because of the concomitant social stigma attached to the crime.

However, by the Police Records cases of Crime Against Persons, the offence of Rape/Indecent Assault is the third highest offence in Nigeria just after the offence of Assault and grievous bodily harm respectively from 1993 – 2003 with the highest number of recorded cases in 1997. An alarming 2,585 cases being reported that year alone despite the fact that victims of rape cases are reluctant to open up on what they have gone through. There is no gainsaying that the offence of rape has become a reoccurring social problem as well as a legal one.

Rape in Nigeria is on the increase; yet many disquieting issues in our social and political life dominate the front burner of our national dailies – the various corruption scandals, crude oil theft, religious and sectarian violence, kidnappings, electional saga, government policies, etc – most people tend to forget or ignore this horrendous issue that has and is still ruining many lives, dreams, and devastating many homes.

Indeed, with the many reportage on a daily basis about rape cases in social media, it is undisputed that there is a steady increase of this social malady in contemporary Nigeria. This rising incidence has become very alarming and worrying. All over the country, there is a new kind of unheralded harvests of rape case and rapist. The proliferating case of rape in Nigeria remains unfathomable especially now that minors are not spared from its cruel act and there is an increase in novel ways of sexual gratification. This has led our legislators to enact laws to meet up with the modern realities of our time.



LEGAL FRAMEWORK OF THE OFFENCE OF RAPE

The four letter words RAPE is a form of sexual violence. It is violence perpetrated by the use of threat, intimidation and the use of sexual violence. In discussing the offence of rape, particular reference will be paid to relevant sections of the criminal code, the Penal Code, the Child Rights Act and the Violence Against Person’s (Protection) Act 2015.

The offence of rape is provided for in Section 357 of the Criminal Code, which defines rape as:

“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 threat or intimidation of any kind, or by fear of harm, or by means of false and fraudulent misrepresentation 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”.

Furthermore, Section 6 states that:

“When the term “carnal knowledge” or the term “carnal connection” is used in defining an offence called, it is implied that the offence, so far as regards that element of it is complete upon penetration”.

The second limb of the aforementioned section goes on to state that:

“Unlawful carnal knowledge” means carnal connection which takes place than between husband and wife”.

It is worthy to note that the provision of the Criminal Code is applicable to the Southern States of Nigeria.

Section 282 of the Penal Codes states that:

(1) “A man is a said to commit rape who, except in the case referred to in subsection (2) of this section has sexual intercourse with a woman in any of the following circumstances –

(a) Against her will;

(b) Without her consent, with her consent, when her consent is obtained by putting her in fear of death or hurt;

(c) 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 another man to whom she is or believes herself to be lawful married;

(d) With or without her consent, when she is under fourteen years of age or of unsound mind.

“Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.”

The Child Rights Act under the heading “‘Unlawful Sexual Intercourse” provides in Section 31 that:

(1) No person shall have sexual, intercourse with a child.

(2) A person who contravenes the provisions of subsection (1) of this section commits the offence of rape and is liable on conviction to imprisonment for life.

(3) Where a person is charged with an offence under this section it is immaterial that:

(a) The offender believes the person to be of or above the age of eighteen years, or

(b) The sexual intercourse was with the consent of the child.

From the foregoing statutory definitions of rape, it is apposite to stat that by virtue of Sections 357, 16, 30 and 368 of the Criminal Code and Section 282 of the Penal Code as well as well as Section 31 of the Child Right Act, rape is complete where a person above 12 years, have sexual intercourse with a woman, without her consent or a girl of immature age or unsound mind with her consent, will be guilty of rape.

Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife it is complete upon penetration. Punishment for rape and attempted rape is life imprisonment and fourteen years imprisonment respectively, with or without canning. Non-consent to sexual relations has been defined to include the absence of consent or inability of the victim to indicate assent or dissent or if consent was obtained by means of fraud as to the nature of the act. According to the learned scion of Dr. Aniedi Ikpang, “every consent is a submission, but not every submission is a consent”.

Section 30 of the Criminal Code provides “A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.” He can only be convicted for indecent assault not rape.

The foregoing are what the prosecutor needs to prove for him to succeed in an action for rape.



A CRITICAL APPRAISAL OF THE VIOLENCE AGAINST PERSON (PROHIBITION) ACT 2015

With the introduction of the Violence Against Person (Prohibition) Act 2015, the traditional definitions and elements of rape has come under threat in an attempt to expand the frontiers of the offence of rape, to cover novel ways and methods of sexual gratifications. In discussing the offence of rape under this Act, particular reference will be paid to be provisions of Section 1 and 26 of the Act.

Section 1 provides thus:

(1) A person commit the offence of rape if –

(a) He or she intentionally penetrates the vagina, anus or mouth of another person with any 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.

(2) A person convicted of an offence under subsection (1) of this section is liable to imprisonment for life except:

(a) Where the offender is less than 14 years of age, the offender is liable to a maximum of 14 years of imprisonment.

(b) In all other cases, to a minimum of 12 years imprisonment.

(c) In the case of rape by a group of persons, the offenders are liable jointly to a minimum of 20 years imprisonment without an option to pay fine.

(3) The court shall award appropriate compensation to the victim as it may deem fit in the circumstance.

(4) A register for convicted sexual offender shall be maintained and accessible to the public.

Section 26 of the Act goes on to provide for an offence of indecent exposure. The section provides thus:

(1) A person who intentionally exposes his or her genital organs, or a substantial part thereof, with the intention of causing distress to the other party or that another person seeing it may be tempted or induced to commit an offence under this Act, commits an offence termed “indecent exposure”.

(2) A person who intentionally exposes his or her genital organs or a substantial part thereof, and induce another to either massage, or touch with the intention of deriving sexual pleasure from such acts, commits an offence under this section.

(3) A person who commits an offence under this section is liable to upon conviction to a term of imprisonment of not less than 1 year or to a five not exceeding N500,000 or both.

The above sections of the Act is reproduced here for clarity sake and to make the critical appraisal stressless without having recourse to make reference to the said section from the hard copy and to make those who do not have a copy of the Act make easy reference.

From the replicated Section 1 above, the following issues have arisen for serious consideration:

(i) A woman is capable of committing the offence of rape.

(ii) The frontiers of what constitute rape have been expanded.

By the spirit and letters of paragraph (C), a new phrase have been included as to what will amount to ‘no-consent’ in the offence of rape and that is ‘the use of any substance or additive capable of taking the will of such person’.

Also, subsection 2 of the above mentioned section, particularly in paragraph (a).

The Act has made a person under 14 years of age criminally liable for the offence of rape.

This is against the letters and spirit of Section 30 of the Criminal Codes which absolves a male below 12 years of Criminal responsibility of the offence of rape. Also, against Section 50 of the Penal Code which absolves a child under 7 years of age of an offence and child above 7 years of age but below 12 years of age but below 12 years of any Criminal possibility unless it can be proved that such child have sufficient maturity of understanding to appreciate the consequence of his action.

Also, the punishment for a commissioned rape under paragraph (a) of subsection 2 of the Violence Against Person (Protection) Act is against the letters of Section 358 of the Criminal Code and Section 283 of the Penal Code respectively.

The Act is not really clear in paragraph (b) of the section under torchlight as to what it means by “in all other cases”.

From issue (i) above, it is pertinent to ask the question, can a woman be capable of rape? The answer to that question hitherto would be an unequivocal “NO”, because going by the definition of rape in the Criminal Code, Penal Code, only a man can be a defendant to a charge of rape. In law, a woman cannot be said to be capable of committing rape. Apart from that, only the males are equipped to achieve penetration by virtue of section 6 of the Criminal Code. But all the same, a woman can be changed with being an accomplice to rape. See R. V Ram (1893) 17 Cox 609, where a wife was convicted for aiding her husband to rape her maid.

By virtue of Section (i) of the Violence Against Person (Protection) Act on issues i, another question that readily comes to mind is can a man be a victim of rape?

In answering this question, I am guided by the statute in order not to veer into the realms of mere semantics. By the wordings of both the Criminal Code and the Penal Code, only a woman can be a victim of rape. Though, situations were a man was made to submit to sexual intercourse is described as ‘rape’ by the media, in law it only amounts to ‘assaults’. The Criminal Code is clear on this when it provides in section 357that “any person who has unlawful carnal knowledge of a woman or girl…” thereby making the woman the subject of the sexual gratification of a man.

There is a legislative re-echo in the Penal Code when it provides that “a man is said to commit rape… has sexual intercourse with a woman”.

On issue (ii) raised above, under paragraph (a) of subsection (1) of ...........http://nextnewslive.com/rape-and-the-provisions-of-section-1-and-26-of-the-violence-against-person-prohibition-act-2015/

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Rape and need of consent in proof of the offense under the Nigerian criminal and penal laws