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Even After They Say Yes! It Can Still Be Rape! By Kindness Nduba Esq.

Introduction
Rape cases in Nigeria are on the rise and only few victims have gotten justice because of the rigidity and restrictions of the law. The issue of consent has been a cause for debate as some people are of the view that the victim gave his or her consent. The Law in Nigeria today can find a man or a woman guilty of the offence of rape. This article sheds some light on the legal position of the issue of rape in Nigeria.

What is the Position of the Law?

Under 357 of the Criminal Code, which is applicable to the southern part of Nigeria, rape is defined 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 2 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 Penal Code which is applicable to the northern part of Nigeria defines rape thus;

(1) A man is said to commit rape who … has sexual intercourse with a woman in any of the following circumstances:- (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) 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 the man to whom she is or believes herself to be lawfully married; (e) with or without her consent when she is under fourteen

The Violence Against Person’s (Prohibition) Act 2015 defines rape thus ;

A person commits the offence of rape if ;

a.) he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or with anything else

b.) The other person does not consent to the penetration;

c.)The consent is obtained by means of intimidation of any kind or by fear of harm, or by means of fraud 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 a person and in the case of a married person, by impersonating his or her spouse.

Rape is a heartless act, a terrible sin against humanity, it should never be a subject treated lightly or even an item for comic relieve, it should and must always be discouraged by all. The act goes beyond what the average person takes it to be.

For some, if there are no physical bruises, there was no rape, this ideology is ridiculous. If consent is not obtained voluntarily, it was not sex but rape, it is really very simple. 

I have read the recent trend on twitter with regards to the concept of rape, consent and the trauma involved. I am dazed with amazement the level of ignorance when it comes to this subject matter.

The trauma from this beastly act is one that may linger for a lifetime of the victim if not properly managed. Rape destabilizes its victims; it affects their physical, psychological, cognitive and interpersonal behaviors. 

When do we say someone has been raped in Nigeria?

Following the definition from our criminal and penal code and the Violence against persons Act, we could rightly say a person has been raped

If;

  1.  After refusing to indulge in sexual activity she is forced by the other party.
  2. He or she consents because he or she is afraid the other party might cause her grievous bodily harm and the victims perceives danger of losing their lives.
  3. He or she consents because of the fear of losing their jobs or means of livelihood. The underling element here is consent induced by fear.
  4. He or she says yes because they feel intimidated by the predator in any way.
  5. The victim is fingered using any instrument atall without their consent.
  6. They are induced by alcohol, drugs or any other substance which deprives the individual his or her sane reasoning capability.

In our society today, a lot of people would agree that a person has been raped if he or she has denied the rapist the consent to have carnal knowledge of him or her, but how many people know about the concept of ‘forced consent”?

  • Consent obtained by intimidation is not consent, it is RAPE!
  • Consent obtained when a person’s means of livelihood or survival is threatened, leaving them with the anxiety of hopelessness is not consent, it is RAPE!
  • If a student says ‘yes’ because of the fear that he or she may never graduate from school if the predator is turned down and the predator has induced this fear in them to obtain consent, it is not consent it is RAPE! The predator has obtained consent by threat.
  • If that maid or help says ‘yes’ because he or she is threatened with being both homeless and jobless it is not consent it is RAPE! The predator has obtained consent by intimidation.
  • Consent obtained out of fear of danger is not consent it is RAPE!

What then is consent?

Consent is agreeing to an action based on your knowledge of what that action involves and having the option of saying no!

So how do I obtain consent?

  • Leave them alone if they are not in the mood
  • Let them know they will lose nothing after they say no and let your actions portray this reality
  • Let know she will not be harmed even if she says no

Sex is an act by two consenting adults and this consent must be obtained devoid of any form of negative influence.

I join millions of Nigeria to the fight against rape and seek justice for Uwa the young girl who was raped and murdered in church on the 27th day of MAY 2020.

https://www.google.com/search?q=what+is+consent&oq=WHAT+IS+CONSENT&aqs=chrome.0.0l8.1544https://www.google.com/search?sxsrf=ALeKk01QV2dkxbBMz1Uu4UGu8ZsdS0oOVw:1588433461692&q=What+does+it+mean+to+give+consent%3F&sa=X&ved=2ahUKEwi41u7hv5XpAhVC8eAKHdfPDw0Qzmd6BAgREAs&biw=1366&bih=6570j0j7&sourceid=chrome&ie=UTF-8https://evaw-global-database.unwomen.org/en/countries/africa/nigeria/1990/section-357-of-the-criminal-code-and-section-282-of-the-penal-code

KINDNESS NDUBA ESQ is an Abuja based Legal practitioner, human rights activist and the Founder of Biz Reg NG

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