Daily Law Tips (Tip 592) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

CAN A HUSBAND RAPE HIS WIFE ?

It is common to find people argue that a man cannot rape his wife or cannot be punished for raping his wife. They also argue that a wife must always grant sex to her husband and that where a husband forces, drugs or deceives his wife to have sex, it is not rape.

Many husbands (even mothers) argue that bride price is a symbolic purchase of wife, turning wife to a mere property/slave of her husband (master/lord). As a property, a wife has no mind of her own, even over her body and health. Systematically, many wives are brainwashed and cajoled to never seek legal remedies by the society and stakeholders. It is a taboo to have this discussion in some communities and religions in Nigeria. Truly, many are the afflictions of women of all classes!

In Nigeria, rape is an act of sexual intercourse, wherein a male knowingly penetrates a female’s vagina that is not his wife’s with his penis, without the consent of the penetrated female or with her consent that was obtained by fraud, force, threat, intimidation, deceit or impersonation. In proving rape, there is need to establish slightest penetration of vagina (often via rupture of the hymen or emission of semen into the vagina).

Going by the above definition of rape, in law courts, there cannot be rape between a couple (a husband cannot be said to have raped his wife even where the husband actually raped his wife and there is overwhelming evidence). At worse, husbands that raped their wives get charged with lesser offences, including indecent assault with mere maximum punishment of 3 years imprisonment. Like it is said, the law is an ass but the law is the law until it is changed. The above definition of rape comes from the Criminal Code (operational in Southern Nigeria), the Penal Code (operational in the Northern Nigeria) and the judgements of the courts in Nigeria. Well, things have changed on this issue since 2015.

Since law cannot be used as an engine of fraud, the legislatures have reacted positively to the deafening cries of wives, who are often raped by their husbands, without legal remedies. The bold step emanated from the Federal Capital Territory, Abuja under a federal law (the Violence Against Persons [Prohibition] Act, 2015). By the Violence Against Persons [Prohibition] Act 2015, rape of a wife/husband by her/his husband/wife is now a crime.

The Violence Against Persons [Prohibition] Act 2015, law did not exempt husbands and wives from rape, rather broadened the rape net to now cover “any person” that rapes! It also extends rape to any penetration of any opening in the body of a victim and with any thing. Now there is no need to prove rape only by penetration of vagina with penis, since penetration of any opening in the body (including, mouth, anus, ear and nose) now suffices. So forceful mouth to mouth kiss is arguable be rape. It also recognizes that men can be victims of rape. Some other states in Nigeria, have adopted or enacted similar laws, including Anambra State, Ebonyi State and Oyo State.

Rape is punishable under the Violence Against Persons (Prohibition) Act 2015, with imprisonment for a minimum term of 12 years and maximum period of life imprisonment. This includes rape between husband and wife. Rape is rape, marital status and relationship notwithstanding!

Kindly note that the Violence Against Persons (Prohibition) Act 2015, is operational only in Federal Capital Territory, Abuja. However, similar laws are now operational in Anambra State, Ebonyi State and Oyo State. More States are encouraged to enact similar laws. There is need for states to always prepare adequate legal framework and environment for rights to flourish and offenders to be adequately punished. Man is naturally selfish and people will not stop rape because they care but will stop rape for fear of law. And, the laws will not be known after being enacted unless there is measurable awareness. Law awareness is the vision behind the free daily law tips (#DailyLawTips) and the free law platform/website (LearnNigerianLaws.com) of Sabi Law Foundation.

My authorities are:

1. Sections 1, 47 and 48 of the Violence Against Persons (Prohibition) Act, 2015 and other similar laws in states of the federation
2. Sections 1, 6, 222A, 353, 357, 358, 360 and 363 of Criminal Code Act, 1916.
3. Sections 268, 272, 275, 282, 283 and 285 of the Penal Code Act, 1960.
4. The Supreme Court’s judgment in the case (on how to prove rape) of NDEWENU POSU & ANOR v. THE STATE (2011) LPELR-1969(SC).

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