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Rape Under The Nigerian Laws And The Need  For Amendment By Michael Joseph And Toluwani Bamigboje

INTRODUCTION

Rape has a history that almost equalled the history of man’s creation[1]. It is on record that the first recorded incidence of rape in the Bible was also in the Book of Genesis. Indeed biblically, rape was a constant feature among men and at a point it was taken as a thing of shame not on the victim but on the family of the person raped[2].

Culturally, it is an offence which stands on the same pedestal with the offence of murder since a suspect accused of rape is expected to go into hiding while his people make efforts to cleanse the shame on the face of the family of the rape victim. Despite all these, the offence of rape in Nigeria seems to be on the increase and the question on every lip is what the cause is? Does it mean that the punishment stipulated for it in the extant laws is no longer heavy enough to deter would-be rapist or are there factors which ostensibly offer more incentives for rape than the risk of its punishment[3]. Furthermore, there is the fact that women have always been perceived as the weaker vessel, and so have been subjugated and oppressed by culture in most African societies. The culture is defined by inequality and the subjugation of the female folk. Forms of gender-based violence, including rape, domestic violence and other sexual abuses, have assumed serious dimensions globally.

Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person’s consent.  The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent[4][5][6].

The issue of rape is not an abstract issue as it has unveiled its ugly mask in every society, and how do we describe the brutal nature of this shameless masquerade in Africa, especially in Nigeria? What could have triggered the increase in recent times? What could have caused perpetrators to sexually assault their victims[7]?

These questions are not easily answered, because in rape cases questions are easily asked but answers are much more difficult and inconvenient to answer. The closest thing to an answer is the cold shoulder, the emotional reaction that one receives when the issue is mentioned.

In Nigeria, incidences of rape are fast assuming a threatening dimension that requires urgent intervention considering the increasing rate. Rape, like other forms of violence against women, is an infringement on women’s rights, privacy, self-preservation and dignity. Available data in the print and electronic media reveal that the issue of rape has become a serious social problem of epidemic proportions and no longer an isolated criminal act affecting just a few women in the society. In recent times the incidences of rape have increased at an alarming rate in Africa and also in Nigeria leading to the death of so many women. There is little or no policy or law that helps protect the victims as they are most times blamed, stigmatized and humiliated by the public if it is brought to the public domain. This hinders victims from embracing a mindset of reporting such an inhumane crime to the appropriate authority.

Since time immemorial, rape which is one of the oldest crimes in the history of the human race has caused a lot of pain and agony to individual rights with different jurisdictions spelling out the punishment if anyone is found guilty of same. However, till date, rape has continued to occur with no sign of ceasing but rather on the increase in virtually every part of the world. This act which at a certain time was largely perceived to have occurred as a result of lust does not seem to be so anymore. However victims of rape have no age limit as babies, and the aged are vulnerable to this menace. Interestingly 90% of victims of rape are female.

With the way things are going, we cannot say that it is a category of a particular age that engage in such act because even the elderly adults in the society partake in this animalistic act. In essence, teenagers, young men and old men engage in forceful sex with the opposite sex.

DEFINITION

Rape is defined in most jurisdictions as sexual intercourse, or other forms of sexual penetration, committed by a perpetrator against a victim without their consent[8]. The definition of rape is
inconsistent between governmental health organizations, law enforcement, health providers, and legal professions[9]. It has varied historically and culturally.

The World Health Organization (WHO) defines rape as a form of sexual assault[10], while the Centres for Disease Control and Prevention (CDC) include rape in their definition of sexual assault; they term rape a form of sexual violence.

Rape as generally known to all can simply be put to mean an act of a man having forceful sexual intercourse with a woman or girl.

Rape is defined as the 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[11].

Section 357 of the Criminal Code Act applicable in the Southern part of Nigeria, defines rape as follows;

“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.”

It follows in section 358 of the same Act that the punishment for the offence of rape is imprisonment for life. It is imperative at this point to refer to the Criminal Code’s definition of ‘carnal knowledge’ since that is the key word in the offence. According to section 6 of the Criminal Code Act, the offence of rape is complete upon penetration. Further, unlawful carnal knowledge is one which takes place otherwise than between husband and wife.

Section 282 of the Penal Code which is applicable in the Northern part of Nigeria defines rape as follows;

“(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 years of age or of unsound mind.
(2) Sexual intercourse by a man with his own wife is not rape, if she has
attained to puberty

The definition presumes only penetration of a vagina by a penis and discriminates against women and girls who may have been raped by use of a foreign object or who have been penetrated orally or anally by the penis. (In addition, the definition in Section 282 is not gender-neutral and is based on the concept that only a woman can be raped.)

Furthermore, under Section 1 of the Violence against Persons (Prohibition) Act, 2015 rape was defined as follows;

“(1) 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 the use of any substance or addictive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.”

The definitions under the Nigeria Laws have created empty spaces which need to be given the necessary attention hence the amendment. The definition on rape explains the fact that rape can only be committed by a man against a woman and not vice versa. On this note it will be agreed because it has been recognized, that a man may also be a victim of rape and it may be perpetrated by any person including a woman; this has been trending in our present day society. In the world of science and technology, is it not possible for a woman to actually penetrate a man through the anus or even for a woman to penetrate another woman? As this question is raging, there is also the need to clearly understand the status of a woman who procured another man to rape a woman. Will such a woman be liable as a party under section 7d of the Criminal Code?

As an author stated, will the penetration of a woman’s vagina with a stick or other such instrument not suffice as rape or must the offence of rape be committed when the penetration is with or by the penis?

At this time, it is imperative that we look at other definitions of the offence of rape in other countries:

The Rome Statute defines the inhumane crime of rape in Article 7(1)(g) of the Elements of Crimes[12]:


“1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.


2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.”

In the UK[13], under section 1 of the Sexual Offences Act (2003), it is defined as:

            (1) A person (A) commits an offence if—

  • he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
    (b) B does not consent to the penetration, and
    (c) A does not reasonably believe that B consents.
    (2) Whether a belief is reasonable is to be determined having
    regard to all the circumstances, including any steps A has taken to
    ascertain whether B consents…
    (4) A person guilty of an offence under this section is liable, on
    conviction on indictment, to imprisonment for life.

 In the US[14], the Department of Justice defines rape as:

“Penetration, no matter how slight, of the vagina or anus with any
body part or object, or oral penetration by a sex organ of another
person, without the consent of the victim”.

By the above definition by the department of Justice, it has shed light to the fact that there is no eternal pattern for the law and the law not only differs from one place and time to another but is necessary subject to constant revision and renewal at any given place and time which explains the fact that change in the law is essential to keep it just.

In Australia, the punishment for the offence of rape is life imprisonment. Rape was also defined there as follows,

2) A person rapes another person if—
(a) the person has carnal knowledge with or of the other person without the
other person’s consent; or
(b) the person penetrates the vulva, vagina or anus of the other person to any

extent with a thing or a part of the person’s body that is not a penis
without the other person’s consent; or


(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.[15]

In the definition above, it is imperative to observe that rape is not just about carnal knowledge
without consent; it includes penetration of the vulva, vagina, anus or even mouth with a penis
and even with any part of the body not being the penis. Of course, the definition above entails
that a man can and a woman equally can commit the offence of rape.


In South Africa, a person is guilty of the offence of rape if the person (‘A’) unlawfully and
intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent
of B[16]. At this juncture, it becomes imperative that we seek a definition of sexual penetration.
Section 1 of the law contains the definition section. It defines ‘sexual penetration’ to “include
any act which causes penetration to any extent whatsoever by-

  1. the genital organs of one person into or beyond the genital organs, anus,
    or mouth of another person;
  2. any other part of the body of one person or, any object, including any
    part of the body of an animal, into or beyond the genital organs or anus
    of another person; or
  3. the genital organs of an animal, into or beyond the mouth of another
    person, and ‘sexually penetrates’ has a corresponding meaning.[17]

The above definition shows further that the offence of rape is not limited to a particular gender in the course of its commission. Furthermore, it shows that rape is not just the penetration of the
vagina with a penis but includes much more.

A community reading of the definitions of rape as provided by the various jurisdiction above prove that we can find some similarities in the definitions ranging from lack of consent, consent obtain by either force, fraud, intimidation, penetration and fear, as well as impersonating the victims’ spouse in the case of one who is married. At this, stage, it becomes essential that we looks at the definition of the term ‘consent’ for it is vivid that the offence of rape exists because consent does not exist.

CONSENT

Consent is primarily a legal construct that has its origins in three different doctrines of law. The first is informed consent. After World War II, the idea of informed consent primarily emerged in response to coerced or involuntary medical experimentation, which was brutally imposed in Nazi concentration camps. More broadly, informed consent comprises the idea that one should know and provide affirmative agreement to a procedure, be it a science experiment or a medical procedure. The second notion of consent is the legal capacity to consent. This is based on the idea that one has the capacity, knowledge and ability to understand what one is promising in a contract and what is being promised. Finally, the third aspect of consent arises from criminal law, and covers amongst other things ‘victimless crimes’. In referring to victimless crimes, there is a need to albeit offer a working definition of same. Victimless crimes are generally used to refer to crimes that actually have no victims. Such crimes include drug use and prostitution among other
crimes. In such crimes, the consent of the parties is irrelevant, because the state, crown or ‘the people’ are deemed to be injured, and it is their interest that is protected by the law[18].

In the case of Ahamefule v. Imperial Med. Centre[19], consent was defined by the court thus: ‘consent in legal parlance involves an element of volition, a voluntary agreement which is the deliberate and free act of the mind.’

Consent refers to the permission or freedom and capacity to make a choice on whether to have sex or not. When a woman says “no” to sex, her “no” should be taken as “no”.It is possible that a woman who gives her consent to a sexual intercourse at the beginning may later change her mind in the course of the “act” and it is also possible that a woman who does not give her consent at the beginning may later decide to consent to it. Can it be said that there is rape in any of the situations?

The Women Centre of North West University, Illinois, defined consent to mean a voluntary, sexual positive agreement between the participants to engage in specific sexual activity.[20]The University of Michigan Policy on Sexual Misconduct by Students defines consent as ‘a clear and unambiguous agreement, expressed in mutually understandable words or actions, to engage in a particular activity.

Consent is when someone agrees, gives permission, or says “yes” to sexual activity with other persons. Consent is always freely given and all people in a sexual situation must feel that they are able to say “yes” or “no” or stop the sexual activity at any point[21].At the core of consent lies  the fact that every individual is the master of himself or herself and reserves the right not to be played with or acted upon by another in any manner especially sexual manner without his or her express permission this said permission ought to be obtained by the one who wants to act upon the person of the other expressly.


It has been argued in some settings that consent may be categorized into three[22]. For purposes of arriving at our type of consent it is pertinent to touch on the three before moving on with the discourse. The three types of consent include explicit consent, implicit consent and opt-out consent. Explicit consent is referred to as that where the individual has informed knowledge about what information he or she is giving. In explicit consent, he or she has the option to give or not to give the consent required. It is the type of consent required in a sexual matter. It can also be taken as informed consent. Implicit consent on the other hand is consent that is implied from your conduct. It suffices to say that a person reads from your conduct the fact that you said yes or no. This kind of consent is the one that is operational in Nigeria especially when sex is involved. This is so because some have formed the onerous opinion that a woman’s ‘no’ means a subtle ‘yes’. In other words, it has been argued that a woman’s ‘no’ is indirectly a ‘yes’ and that from her conduct while verbally saying ‘no’ she desires the sexual act. This type of consent is wrong and cannot be used to measure consent in sexual matters. The third type of consent which is the ‘opt out’ consent entails that the person in question has only one option and that is to withdraw consent. So when faced with the ‘opt out’ consent, the person is expected to withdraw consent.

Lack of consent is key to the definition of rape[23]. Consent is affirmative “informed approval, indicating a freely given agreement” to sexual activity[24]. It is not necessarily expressed verbally, and may instead be overtly implied from actions, but the absence of objection does not constitute consent. Lack of consent may result from either forcible compulsion by the perpetrator or an inability to consent on the part of the victim (such as people who are asleep, intoxicated or otherwise mentally compromised)[25]. However consent of the victim is a complete defence[26].

Under the Nigerian law, “consent” is not clearly defined in the Criminal or Penal Code. It presupposes that the meaning of the term ‘consent’ can be found elsewhere outside the ambit of the Criminal Code. Under the Sexual Offences Act, Section 74[27] seeks to define consent as a situation where the person offers his agreement by choice and at the same time has the freedom and capacity to make that choice. It follows that in prosecuting such a matter, the prosecutor must ensure that the complainant had the capacity to make a choice about whether or not to take part in the sexual activity at the time in question and secondly establish that the choice was made freely and not in any way constrained or obtained by coercion. Where these two are satisfactorily established, then it can be said that it is consensual sex[28].


However, under the UK’s Sexual Offences Act, consent is extensively defined and it amounts to rape, if a man continues sexual intercourse after a woman withdraws her consent or starts a sexual intercourse where there is no consent, not minding the fact that consent is given midway.[29] In India, consensual sex given on the false promise of marriage constitutes rape[30].

PUNISHMENT FOR RAPE

Section 358 of the Criminal Code Act provides that;

“Any person who commits the offence of rape is liable to imprisonment for life, with or without caning.”

Section 283 of the Penal Code Act 1960;

“Whoever commits rape shall be punished with imprisonment for life or for any less term and shall also be liable to fine.”

Section 1 (2) of the Violence Against Persons (Prohibition) Act, 2015 provides thus:

“(2) A person convicted of an offence under subsection (1) of this section is liable to imprisonment of life …”

Below are the punishments for rape in some countries of the world as at today;

  1. Nigeria – life imprisonment (maximum but it may be less)
  2. China- death
  3. India- Life imprisonment
  4. United kingdom-life imprisonment
  5. United state-life imprisonment
  6. Egypt- death
  7. Saudi Arabia –death
  8. North Korea-death
  9. Israel- 16 years imprisonment

TYPES OF RAPE

  1. Date Rape: this is a type of rape in which the individuals have agreed on social engagement. The assailant may be an acquaintance or a person one has been dating.
  2. Power Rape: apower rapist wants to capture, conquer and control their victim.
  3. Gang Rape: this is when a group of people participate in the rape of a single victim.
  4. Anger or Retaliatory Rape: it involves expression of hatred and rage towards the victim.
  5. Sadistic Rape: the rapist in this case is obsessed and forces the victim to act out a part in some sort of role-play, it could involve mutilation, or torture as a means of getting the rapist excited.

FACTROS THATS HAVE CONTRIBUTED TO THE INCREASE IN RAPE CASES IN NIGERIA


The only casue of rape is the rapist; however there are some factors that catalize or contribute to the increasing number of rape cases in Nigeria. The state of Nigeria’s poorly defined criminal laws and weak law enforcement creates an environment where rape is committed with freedom[31]. As a result of the inadequacy of the law in solving this problem, women advocates are presently trying to prevent future rapes by educating the public, ensuring that quality services are provided to victims in order to encourage accountability and ensure that the perpetrators are brought to justice. According to the Child Rights Law[32] in Nigeria enacted by the federal government in May 2003, anyone convicted for rape is liable to life imprisonment. Unfortunately, few people seem to be focusing on agitating for enforcement of the law and reducing the difficulties encountered by prosecution for a fair case in court. Rather, culprits are being discharged and acquitted regularly. Thus women and girls continue to be raped and molested. Nigeria’s economic and political conditions, as well as social norms support stereotypical divisions between men and women[33]. Other causes of rape include alcohol and drug abuse, idleness, pornography, psychological disorder, and bad company, At any rate, experts, in considering the persistent nature of these rape cases in Nigeria advance the following causes for the unfortunate reality:

  1. Exposure to Modernity

Adolescents in Nigeria today are being bombarded by various modern influences. They read about sex in novels, books, magazines and newspapers. It is said that the adolescents also “Watch various types of pornographic movies aside from being exposed to sexually overloaded advertisements in newspapers and the television. All these and the sexually graphic music, movies, obscene literature directed at the adolescents arouse their interest in sex. Some parents allow their wards to spend too much time watching television programmes where sex is used by most manufacturers to advertise their products. These adverts help put the younger generation under terrific pressure to go into sex by all means. As a result of this exposure, the adolescents are perpetually under pressure to experiment with sex, even if it means raping.

  • Peer Pressure/Influence

Some literature posits that most adolescents are led into sexual promiscuity by peer influence. Peer group is an important factor in the upsurge of rape cases in Nigeria. Innocent youths who keep regular company of rapists may easily learn their evil ways, no matter how careful they think they are. Most adolescents, in trying to remain relevant and to gain the continued approval of their friends try to experiment sex even if it’s through raping. It is often said that children who are more influenced by their parents are more likely to adopt socially acceptable sexual behaviour than those who are more influenced by their peers.

  • The weakness of the Nigerian Criminal Justice System:

It is pertinent to look at the Nigerian criminal justice system and through its lens to look also at the Nigerian society which seems to encourage the offence of rape. It is a statement of fact to say that the Nigerian criminal justice system rests on a tripod comprising the police, the judiciary and the prison. The institution saddled most with the problems of criminal justice administration is the Police. The Nigerian Police prosecutes over 70% of criminal matters in the various courts across the land. Indeed, section 23[34] empowers the Police to prosecute criminal offences in all courts in Nigeria. This statutory provision has received judicial blessings in a plethora of cases[35]. With this power, the Nigerian Police is not only vested with the powers to investigate and arraign, they are also imbued with the power to prosecute. Now, for a complainant in Nigeria, the theoretical provision of the law is that she is at best a witness to the crime and the wrong was done to the society for which the society is expected to exact revenge adopting any of the rationale for sentencing available in law. However, the reality on the ground is that the victim is the arrow-head of the prosecution both financially and materially. It therefore follows that where the victim is not financially buoyant to move the case, the case may suffer an immediate miscarriage. Basically, a victim of a crime is expected to lodge a complaint to the Police who in turn will take it up from there. Of course the lodging of the complaint does not attract any fee.

In today’s Nigeria, the victim is expected to lodge the complaint with a certain amount of money. Then she provides some more money to enable the authorities to investigate the matter. In a crime of rape, when the victim rushes to the Police station to make a complaint, she is derided and in some cases she is likely to be asked question which further increases the pains. When she eventually succeeds in making the report, she will be given a medical paper and asked to go for a test. This test is also at her expense. Most times at the hospital, she meets with a male doctor who further makes inquiries that may even increase the pain of the rape. From there she is sent back to the Police station where she is made to cough out money to initiate the case at the courts and she also has to pay the prosecuting counsel. This scenario can better be imagined if the defendant is a wealthy man who can afford whatever amount that is required of him. From this point, the victim through the prosecutor is squared against the defendant who is comfortable enough to procure a sound lawyer as his counsel of choice.

According to Joy Nzi Ezeilo, Executive Director of WACOL, “the police abus[e] their power, either while on duty or off duty but still wearing their uniform”. She explained that few such cases are reported because “women who have been raped by the police are afraid of being stigmatized in the community and in the family”. In addition, the police are generally not trusted to investigate adequately alleged human rights violations by their own forces, given corruption within the police force and lack of an independent police complaints mechanism.

It is an established fact that police in Nigeria seems to contribute to the culture of tolerance for sexual violence against women. This probably may account for the reason an Abuja High Court Judge, Umoh Enah, recently lampooned the Nigerian Police for its poor handling and prosecution of an alleged rapist[36]. As revealed by statistics, over a hundred cases of violence against the child and women often go without any of the culprits being prosecuted and jailed”.

Furthermore, in a case of rape, the prosecutor must be able to prove the following elements beyond reasonable doubt[37] which is most time very difficult for the prosecution to achieve due to circumstances beyond their power i.e. death of the victim, relocation of the victim etc.

  • Stigmatization

In Nigeria, the woman is frequently victimized twice. First by the violence she endures and by the failure of the governments to bring her abusers to justice. There seems to be a culture of silence surrounding rape in Nigeria.

The social stigma associated with rape across the globe forces female victims in Nigeria to conceal rape assaults in order to save themselves from shame and public embarrassment. Even parents of the raped often find it difficult to come out publicly to report such cases. In Nigeria, when a woman is raped and it becomes public knowledge, “She and her family are “ostracized” due to the dishonour associated with rape”. Another reason for not taking bold steps in reporting such cases could be for the victim’s family to maintain the ever existing cordial relationship with the parents of the perpetrator of the heinous crime. This situation encourages other intenders to go into raping since people who indulge in it go scot-free.

  • Poor Parenting

As a result of Modernity, some parents pamper their children by not
enforcing strict disciplines on them. The parents themselves engage in extra-marital
affairs before them, and so they are more likely to foster children that are rude, arrogant and wayward. Children groomed in this setting (particularly male children) form a biased opinion of the opposite sex and may become rapists.

NEED FOR AWARENESS

Education could serve as an effective tool to combat the date rape problem if it is designed to foster effective communication to dispel the stereotypes and myths that are at the root of the problem. Such programs could actually prevent date rape and improve the prosecution of date rape cases. Furthermore, there must be awareness and proactive campaign against rape, while an enabling environment must also be created to ensure that rape victims can come out to report the offence[38].

A nationwide survey undertaken in 2005 by the CLEEN Foundation, a Nigerian NGO which promotes public safety, security and justice, found that only 18.1 per cent – less than one in five – of some 10,000 respondents who had been raped had reported the offence to the police[39].

Studies have shown that testing people before and after participating in date rape prevention programs have shown that these programs change behaviour related to propensity to rape. A major indicator of whether a prevention program can change behaviour is whether it dispels myths about date rape.

The fact that many males and females believe in gender and race stereotypes and date rape myths suggests that education is needed to dispel these beliefs. Men and women might change their beliefs if the misconceptions and stereotypes that they hold are explained to them through education. In turn, this new understanding might change their behaviour.

Some victims have said that they did not even know that rape cases were to be reported to the police. This awareness should begin from primary school to tertiary institutions and the victims should be given the support that is meant.

REASONS FOR AMENDMENT RECOMMENDATION

The International Crime on Statistics and Justice by the United Nations Office on Drugs and Crime (UNODC) find that worldwide, most victims of rape are women and most perpetrators male. Incidences of rape against women are rarely reported to the police and the number of female rape victims is significantly underestimated[40].   Most rape is committed by someone the victim knows[41]. By contrast, rape committed by strangers is relatively uncommon. Statistics reported by the Rape, Abuse & Incest National Network (RAINN) indicate that 7 out of 10 cases of sexual assault involved a perpetrator known to the victim[42].

The Punch Newspaper reported in 2005 that 513 people – 134 women and 379 men – were in police custody in connection with 423 cases of rape in Lagos State during the first four months of 2005. Many of the rape cases were believed to have taken place in institutes of higher education[43].

One of these immoral and inhumane acts occurred sometimes in May 2020 somewhere around Narayi, in the southern part of Kaduna State, Nigeria where an 18 year old girl simply identified as Miss Jennifer was gang raped by a group of five boys said to be her friends after giving her a drink containing alcoholic substance which caused her to sleep off and remain unconscious while they engaged in the act and which presently has left her in a poor mental state[44].

Another recent occurrence on May 27, 2020 is the case of one Miss Uwavera Omozuma a 22 year old Microbiology student of University of Benin who was raped while she was reading in a church close to her house and after which she was hit with a fire extinguisher which later resulted in her death[45].

With the world as a whole still grieving and calling for justice against the rape committed on Miss Uwavera Omozuma who died in the hands of her rapists, another incidence which occurred was reported in Ibadan of one Miss Barakat Bello, a 19 year old student of Institute of Agriculture, Research and Training, Ibadan. It was reported that she was attacked in her parents’  house at Akinyele area of Ibadan, Oyo State, on Monday June 3, 2020 in the evening and afterwards she was stabbed to death by her rapist[46].

On the 6th day of June, 2020, a twelve year old girl was raped by four masked men in her place of resident at Ajah, Lagos State.

On the 23rd day of June, 2020, a man raped a three –months old baby in Nasarawa State leaving the child in a disfigured state[47].

The perpetrators of this act have also taken the habit of violating underage girls even below the age of 10 years. Therefore, incidences rape being committed this present day and time can no longer be termed as lust but rather an act of wickedness as most of the culprits end up killing their victims either directly or indirectly as the victims may die due to loss of blood or committing suicide as a result of the trauma experiences or stigmatization by the society and sometimes as a result of trying to abort the pregnancy arising from the act.

Based on the current increase of this animalistic act happening all over the world with Nigeria not being an exception, it is pertinent to note that the punishment as provided by our laws need to be amended to be more strict and also modalities be put in place for quick dispensation of rape cases in Nigeria. In support of the above is the wordings of Per I.T. Muhammad J.S.C in respect of the case of Shuaibu Isa v. State (2016) 6 NWLR (Pt.1508) 243 where His lordship by way of obiter referred to a rapist thus;

“A rapist is worse than an animal. He has no moral rectitude. He throws overboard, the limit of his legal rights and he can, shamelessly, deprive another person (more painfully, female children of under age) of their God given rights of protecting the chastity and sanctity of their body and mind. He is all out to pollute such chastity and sanctity. He has no respect for human beings! He can commit any atrocity. He is a cancer to the society. What a shame!”

Lagos State on its part has created the Special Offences Court to hear sexual offences speedily but there is still need for extra effort to tackle this virus called rape virus rapidly spreading. However, other states have not come out to follow suit on tackling sexual offences the way Lagos State has done.

RECOMMENDATIONS

In putting in place the existing punishment for the offence of rape, the drafters of the law were lead by comparing other jurisdiction’s legislation on rape which has also changed as the world transforms daily. It is in this light that it will be permissible to state that our law makers should take a succinct look into the crime of rape and opt for stiffer punishments in view of different advancements of the modern world, the definition should be expanded as against its present interpretation.

The followings are the recommendations:

  1. Death Penalty: A person found guilty of the offence of rape should be sentenced to death either by hanging, firing squad, lethal injection, electrocution etc. Some countries of the world as stated in the paper have applied this punishment for persons found guilty of this offence.
  1. Closed Trial: In Nigeria, rape cases are in the open court. With the fear that /people will be staring at the victim and also the shame, a victim may not be willing to report the matter to the police or other established body.
  1. Definition of the offence: It is the recommendation of the author that there is a need for the review of the law on rape in Nigeria to expand the definition and make it an offence for both sexes.
  1. Definition of Consent:  It is recommended that consent should be defined in the Criminal Code and other relevant statutes[48].
  1.  Special Court for sexual offences nationwide:  the process of the trial of a rape offence should be reviewed and special courts to try offences of rape and where possible in camera to protect the virtues or dignity of the victim.
  1. It is recommended that a government established centre be put in place to report rape and sexual offences rather the police station.
  1. Castration: This is a process where a man’s testicles is removed and after the said testicle is removed, the man ceases to have urge for  sex  because the body now has a low level of  the male hormone testosterone[49].
  1. Domestication of the Violence Against Persons (Prohibition) Act, 2015:[50] The lawmakers of both the Federal and States level should work towards ensuring that the VAPP Act is domesticated by all states of the federation to regulate domestic violence and all forms of sexual abuses as reports show that only fifteen(15) states have so far signed it into law[51].
  1. Parents should focus using the same effort and energy raising the female child to raise the male child into becoming a responsible adult in the society. Children should be taught everything they need to know about consent from an early age. The family is a fundamental unit of the society and it will be hard to instil certain values that haven’t been taught at home.   

 CONCLUSION

In view of different advancements of the modern world, the law should be amended and the definition should be expanded to enable the agencies assigned to curb this menace as it is on the increase daily and the government should see reasons why there is need for amendment rather than reading recommendations as a fruitless exercise.

Furthermore, victims of rape should be offered some protection, encouragement to voice out and confidentiality within the scheme of criminal justice architecture which allows essential persons to be present in court. Proactive sensitization programmes on stigmatization should be organized for both the male and female gender on the act of rape and the government should support non-governmental organizations as they play a vital role in assisting victims in the country even when they cannot go to the police. With this, citizens will be educated to understand that victims of rape are not to be stigmatized as it is evident that this is one of the reasons why most of the victims of rape do not speak out and eventually commit suicide.


[1] Genesis 34:1-2 Good News Bible

[2] Gen 34:3-13

[3] Ewulum Et Al: Rising Cases of Rape Offences in Nigeria: New Measures to the Rescue

[4] “Sexual violence chapter 6” (PDF). World Health Organization. 2002. Retrieved 5 December 2015.

[5] “Rape”. dictionary.reference.com

[6] “Rape”. legaldictionary.thefreedictionary.com

[7] Chiazor I.A., Ozoya M.I., Udume M. & Egharevba M.E: Taming the Rape Scourge

[8] Smith, Merril D., ed. (2004). Encyclopedia of rape (1st ed.). Westport, Conn. [u.a.]: Greenwood Press. pp. 169  170. ISBN 978-0-313-32687-5.

[9] Maier, S. L. (2008).  “I Have Heard Horrible Stories…”: Rape Victim Advocates’ Perceptions of the Revictimization of Rape Victims by the Police and Medical System”. Violence against Women. 14 (7): 786–808. doi:10.1177/1077801208320245 . ISSN 1077-8012 . PMID 18559867.

[10] Krug, Etienne G.; et al., eds. (2002). “World Report On Violence And Health” (PDF). World Health Organization. p. 149.

[11]Posu v. State (2011) 3 NWLR (Pt. 1234) 393; Iko v. State(2001) 14 NWLR (Pt. 732) 221; Lucky v. State (2016)NWLR

[12]Rome Statute of the International Criminal Court, adopted on 17 July 1998. 

[13] A critical analysis of the UK’s definition of rape shows that the offence can only be committed by a man,
though a man, like women, could also be a victim. Under the Department of Justice’s definition, on the other
hand, both men and women may be victims or perpetrators. It is observed that both the US and UK’s
definitions make use of the word “penetration”, instead of “carnal knowledge” or “sexual intercourse” as
found in the Nigerian definitions of rape, which means that rape may be committed where a person’s vagina,
anus or mouth is penetrated with penis, object or any part of one’s body whether there is sexual intercourse
or not.

[14] An updated definition of rape, available at http://www.justice.gov/opa/blog/updated-definition-rape

[15] Section 349 Criminal Code 1899 Queensland Consolidated Acts

[16] Section 3 Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007 South Africa

[17] Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007 South Africa

[18] Mindy Jane Roseman, Jaime Todd Gher and Sara Hossain, ‘Consent and International Human Rights Law’, available online at www.creaworld.org/sites/default/files/3.consent and international human rights law.

[19] (2005) 5 NWLR (Pt. 917) 51

[20] Definition sourced from www.northwestern.edu/womenscentre/issues-information/sexual-assault/definingsexual-assault

[21] Sexual Assault Prevention and Awareness Centre, University of Michigan available online at
www.sapac.umich.edu/article/49

[22] This argument is common among those in the medical field

[23] “Rape” legaldictionary.thefreedictionary.com.

[24] Basile, KC; Smith, SG; Breiding, MJ; Black, MC; Mahendra, RR (2014). “Sexual Violence Surveillance: Uniform Definitions and Recommended Data Elements, Version 2.0” (PDF). National Centre for Injury Prevention and Control, Centers for Disease Control and Prevention.

[25] Rape and sexual violence: Human Rights Law and standards in the International Criminal  Court. Amnesty International 2011

[26] Iko v. State (2001) 14 NWLR (Pt. 629)86

[27] Sexual Offences Act 2003 of the UK

[28] See also R v Bree [2007] EWCA 256

[29] See, Sections 75 – 76 of the Sexual offences Act, 2003.

[30] Correspondent, Legal (2019-04-13).”Sex on false promise of marriage is rape: Supreme Court” . The Hindu. ISSN 0971-751X . Retrieved 2019-04-14.

[31] Amnesty International 2006

[32] (31(2)

[33] Chiazor I.A., Ozoya M.I., Udume M. & Egharevba M.E: Taming the Rape Scourge

[34] Police Act Cap P19 LFN 2004

[35] See Compt. NPS v Adekanye (No1) 2002 15 NWLR Pt 790 at 318, Ajakaiye v FRN 2010 11 NWLR Pt 1206 at
526

[36]

[37] Posu v. State (2011) 3 NWLR (Pt. 1234) 393

[38] Rape under the Nigerian Law by Kehinde Adegbite, Esq., LL.M., BL

[39] CLEEN Foundation, National Crime Victimization Survey 2005 – overview of 2005 report, Power Point presentation of 12 June 2006, www.cleen.org.

[40] Harrendorf, Haskenan, Malby, Stefan, Marku, Steven. “International Statistics on Crime and Justice” (PDF). www.unodc.org. United Nations Office on Drugs and Crimes.

[41] Finley, Laura (2018). “Acquaintance rape” . In Smith, Merril D. (ed.). Encyclopedia of Rape and Sexual Violence, Volume 1. ABC-CLIO. p. 1. ISBN 978-1-44-084489-8.

[42] Smith, Merril D., ed. (2018). “Stranger rape” . Encyclopedia of Rape and Sexual Violence, Volume 2. ABC-CLIO. p. 430. ISBN 978-1-44-084489-8.

[43] The Punch, 3 June 2005.

[44] https://www.google.com/amp/s/www.qed.ng/justiceforjennifer-18-year-old-allegedly-gang-raped-in-kaduna/amp/

[45]https://www.google.com/amp/s/www.bbc.com/news/amp/world-africa-52868835

[46]https://saharareporters.com/2020/06/03/breaking-another-female-student-raped-and-stabbed-death-parents’%E2%80%99-house-ibadan.

[47] Saharareporters.com/2020/06/23/man-who-raped-three-month-old-baby-nasarawa-arrested

[48] Section 264, Criminal Law of  Lagos State defines consent for the purpose of the defnintion of rape in the law.

[49] https://slate.com/news-and-politics/2007/12/can-a-sex-offender-still-have-sex-after-he-s-been-castrated.html

[50] https://www.partnersnigeria.org/vapp-tracker/

[51] https://www.partnersnigeria.org/vapp-tracker/

Michael Joseph, LL.B, BL., is a dynamic and intelligent professional knowledgeable  in Criminal law, Property law, Oil and Gas, Corporate and Commercial law, Regulatory Compliance and Capital Markets.

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