In our society today, it is rampant and well settled that people like arguing about law but barely devote time to know more about it. For this reason, this article tends to resolve two nagging issues to wit: (1) whether a woman can legally rape a man? (2) Whether a husband or wife can rape either of the spouse?

For an ordinary man in the society, every offence is contained in our Constitution. But it is not so as the Constitution is only a grand norm, terra firma or pillar upon which other laws can validly be made.

The Constitution in its entirety never mentioned the offence of rape but a close look at section 34 of the Constitution of the Federal Republic of Nigeria, 1999(as amended) which provides for the right to human dignity, will in all good senses justify any law made about rape; because the right to dignity includes but not limited to the right not to be subjected to torture, either psychologically or physically and the right not to be subjected to degrading treatment. Hence, rape falls under the purview of both psychological and physical torture.

Having legally justified the laws regulating the offence of rape, it will be pertinent and correct to add that it will be gender bias, inequitable and a flagrant breach of section 42 of the Constitution of the Federal Republic of Nigeria, 1999(as amended), if and only if it is the female folk that is only protected against rape; knowing too well that our society is no longer what it was in the past, where women are seen and considered as weak vessels.

In the course of this discussion, I will confine myself with the Criminal Code, 2004; the Penal Code, 2004; and the Violence Against Persons Prohibitions Act, 2015. All of which are laws of the Federal Republic of Nigeria; as judicial authorities or cases are yet to be made on these issues.

In resolving the first issue raised in this article as to: whether a woman can legally rape a man? I respectfully answer in the affirmative. Firstly, something is legal when the law permits it; and illegal when the law totally frowns at it. The fact that a woman can rape a man is no longer novel in our legal system, that is, Nigerian laws.

Prior to 2015, it is only a woman or a girl who is recognized by our legal system as capable of being raped. Section 357 of the Criminal Code ( which is inparimateria with section 282 of the Penal Code) states: “any person who has unlawful carnal knowledge of a woman or a 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 impersonating her husband is guilty of an offence which is called rape.”

From the wordings of the above section which is unambiguous and clear, it is right to say that it is only a woman or a girl who can be raped. The men are totally exempted from this legal protection; subject to which the male folk were always being molested sexually on several occasions without legal remedy.

However, in 2015 the National Assembly passed a law called and known as the Violence Against Persons Prohibitions Act 2015; which is meant to restore gender equality and to avoid further breach of the constitutional provisions of section 42 particularly.

A careful and painstaking perusal of section 1(a),(b) &(c)of the Violence Against Persons Prohibitions Act 2015, shows that both a man and a woman can be victims of rape. For clarity and easy understanding, I beg to reproduce the said section of the Act. Section 1 of the Violence Against Persons Prohibitions Act 2015 provides 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 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 act or the use of any substance or additive capable of taking the will of such person or in case of married person by impersonating his/her spouse.’

I lay heavy reliance on paragraph A of the aforementioned section. From the wordings of the said paragraph A, it is both glaring and visible to the blind that a man or a woman can be guilty of rape if: ‘he or she intentionally penetrates the vagina, anus or mouth of another…’ It is also worthy to note that special canons of interpretation other than literal interpretation will not apply in the above section as that will not reflect the intention of the draftsman. In Sussex Peerage case, LORD TINDAL CJ., explained the literal rule thus: “the only rule for the construction of acts of parliament is that they should be construed according to the intent of parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expand those words in their natural and ordinary sense.

A question may be asked as to: whether a man has a vagina or whether a woman has a penis as to prove penetration which is an essential ingredient that must be established in an offence of rape? In answering the above question, it has been settled by the same paragraph A of the preceding section when it states: ‘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.’ To this end, breast feeding a man by a woman against his will can amount to rape. Penetrating the anus of a man by a woman with her hand or anything else against his will can also amount to rape. Therefore, the purport of the Violence Against Persons Prohibitions Act 2015, is that rape can take place between both sexes since the words ‘another person’ in the section could mean a woman or a man; and the words‘he or she’ mean man or woman respectively.

Following from the above arguments, I humbly submit that, a woman can legally rape a man; and the punishment is the same as when a man rapes a woman or a girl.

On the second issue as to: whether a husband or wife can rape either of the spouse?

I answer in the negative. The above-cited section 357 of the Criminal Code provides: ‘any person who has unlawful carnal knowledge of…’ which means that some carnal knowledge/connection is lawful; and as the above section stipulated, it should be the one taking place between a husband and wife. The proviso to section 6 of the Criminal code also affirms my position. It states: ‘unlawful carnal knowledge means carnal connection which takes place otherwise than between husband and wife.’ Following from the above provisions of the law, a husband or wife who is still living with his/her wife or husband, cannot be said to rape either of the spouse in the eye of the law.

The last paragraph of the section 1 of the Violence Against persons Prohibitions Act 2015, is also of strong and solid support to my position that spouses cannot in law be said to rape either of the two when it states: ‘…in the case of married person by impersonating his/ her spouse.’

It interests me to say that the Criminal Code recognizes that pre-marital sex is unlawful but only justified by the consensusad idem (agreement of the mind) of the parties.

It is pertinent to note that, if spouses are under judicial separation, their conjugal rights are said to be in abeyance. Until their conjugal rights are restored, the husband cannot have sexual intercourse with the separated wife without first obtaining her consent, as to do so without consent will amount to rape.

Judicial separation, therefore, is a situation where a husband and wife are legally put apart for the time being. In the eye of the law, there is still a subsisting marriage between the parties, but their conjugal right, that is right to sex, is suspended. This is mainly to give parties to a legal marriage, room to reconcile their grievances in respect of the sacrosanctity and sanctity of marriage as a special form of contract.

In view of the above expositions, it is only during the period of judicial separation that spouses need to seek consent before they can indulge in sexual intercourse, to avoid being prosecuted for rape.

Following from the above legal reasons, I humbly submit that a husband or wife cannot rape either of the two, except in a situation where they are judicially separated and either of them had sexual intercourse with the other without first obtaining his/her consent. It lacks legal basis and reasonableness to think otherwise.

In conclusion, there has been no decided case or cases on the above issues but I hope that one day some men who may fall victim of such ugly incident will summon courage to approach the court, since the law cannot activate itself; and I believe our learned judicial officers will give the above section its literal interpretation and meaning and hold that a woman can actually rape a man as the aforementioned section stipulates. This article tends to create an awareness of the law for benefit of everyone reading it, that there is now a reasonable, good and sufficient law to prosecute a woman rapist in Nigeria.

Ezekiel Nworie, a student of law at Ebonyi State University, Abakaliki, Nigeria.

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