By B.C Obilor Esq.

The question whether a woman can rape a man, till date, remains a subject of debate. To some, it is ridiculous, and impossible for a woman to be held guilty of the offence of rape.

According to this school of thought, a woman lacks the capacity to commit rape due to the fact that the law provides that penetration must occur to constitute rape. To them, a woman has no penis with which to satisfy the basic requirement of penetration which in law, is a sine qua non towards establishing the offence of rape

On the other hand, the other school of thought represents those who think that the offence of rape can be committed by a woman. According to this school of thought, the offence of rape should or ought not to be determined by penetration. In other words, having sexual intercourse with another person, without the person’s consent should be enough to constitute the offence. Hence, it should not matter how the sexual pleasure is achieved.

Be it as it may, the most important thing is that, what constitute the offence of rape presently has greatly changed from what it used to be. Therefore, an examination of what was rape formally, and what rape now is, is the purpose of the write up.

RAPE UNDER THE CRIMINAL AND PENAL CODES:

It must be noted that before the enactment of the Violence Against Persons (Prohibition) Act 2015, the offence of rape was principally governed by the Criminal Code and the Penal Code.

Under the Criminal Code, Rape is defined as:

“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” SEE Section 357 of the Criminal Code

Similarly, the Penal Code has defined Rape just like the above replicated provisions of the Criminal Code. However, it must be noted that Penal Code merely replaced the phrase “carnal knowledge” with “sexual intercourse.” SEE Section 282(1) of the Penal Code.

Flowing from the above provisions, it is clear that there are two vital elements of the offence of Rape. They are “carnal Knowledge” and “consent”. Suffice it to say that there must be unlawful carnal knowledge of a woman and such carnal knowledge must be without the consent of the woman, before the offence of rape can be said to have been committed.

It must be noted that the idea or the position that only a man is capable of committing the offence of rape is hinged on the fact that the law requires that, there must be penetration with the penis before the offence of rape can be established. Thus, Section 6 of the Criminal Code provides that: “where 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”

By the above narrow definition of the offence of rape, to constitute the offence, there must be the penetration of the virgina with the penis. Thus, any other acts such as fingering, forcing a woman to perform blow job on the man’s penis, and inserting the penis in any other place other than the virgina, do not constitute the offence of rape.

It follows also that penetrating a woman with any object or things other than the penis does not constitute an offence. The above provisions also presupposes that only a woman can be a victim of rape there by neglecting or turning blind eyes on the fact that even a man can be a victim, considering the prevalence of homosexuality.

It is my view that the above laws are discriminatory against men. The reasoning that only a man can rape a woman is not only discriminatory; it is anachronistic and tantamount to intentional mischief on the male folks.

In Nigeria today, there are jambalaya of incidences of females forcefully having canal knowledge of men, yet they cannot be charged for rape simply because they do not have a penis, hence not capable of penetrating a man, this is absurd. This reasoning or requirement of the law is unfounded and unrealistic and a total departure from the present reality of life.

RAPE UNDER THE VIOLENCE AGAINST PERSONS (PROHIBITION) ACT 2015

The enactment of the Violence Against Persons (Prohibition) Act 2015, has redefined the offence of Rape. It has also has put to rest the contentious issue and the long time debate as to whether a woman can be guilty, in law, for the offence of Rape. In otherwords, by the provision of this law on the offence of rape, the question whether a woman can be guilty of rape can now be answered in the affirmative.

Thus the above law provides in Section 1(1) as follows:

A person commits the offence of Rape if-

(a) he or she intentionally penetrates the virgina, anus or mouth of another person with any part of his body or anything else;

(b) 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 or 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 her husband.

A careful perusal and a microscopic x-ray of the above provisions clearly show that the definition of rape has changed a lot. What constitute the offence of rape is now broader and capable of aligning with the current modern realities. Thus, both women and men can now commit the offence of rape. In otherwords, victims of rape are no longer restricted to women and girls. Perpetrators can also be male or female.

CONCLUSION / RECOMMENDATION

No doubt, the new position brought by the Violence Against Persons (Prohibition) Act 2015, has expanded the scope of what constitute rape under the Nigerian law, considering the fact that the offence is no longer limited to penile penetration, as evident in – the use of “anything else” to penetrate, constitutes the offence of rape. It must however be noted that, there is still a terrible loophole.

The new law still used the word “penetration”. The implication is that, a woman who forcefully compels a man to have sexual intercourse with her will still not be liable for rape, unless and until, she penetrates the man, which is an impossibility. It must be noted that a woman has no organ that is capable of penetrating a man; likewise, a man has no organ that is capable of being penetrated by a woman. The contemplation of the law can be said to be “man to man” sexual intercourse by homosexuals which are usually through the anus. It is doubtful if a woman can think of penetrating a man’s anus or mouth for pleasure.

It is my view that the kind of rape a woman can possibly commit, under the new law, is with another woman. This is because; a woman can use an object to penetrate a fellow woman but cannot do same to a man. In otherwords, even under the Violence Against Persons (Prohibition) Act 2015, a woman can still not rape a man.

Therefore, it is my humble submission that something needs to be done to protect the male folks. The act of a woman compelling a man to have carnal knowledge or sexual intercourse with her without the man’s consent should constitute a rape.

I hereby propose the amendment of the extant laws to capture the situation where a man will be compelled to have carnal knowledge of a woman against his will. It is my humble submission that until this is done, the offence of rape remains discriminatory against the male folks and consequently, a breach of their fundamental right.

By: B. C OBILOR Esq.

( OBILORS)

A LEGAL PRACTITIONER BASED IN AKURE, ONDO STATE. ( [email protected])