By J. T. Ayua & I. I. Olagunju

Introduction

The issue of sexual violence against women and children has lingered for ages. This menace has become a can of worms in society, bedevilling the precious and rare gift of nature, the woman. In late May, 2020 in Nigeria, Vera Uwaila, an undergraduate, 22, of the University of Benin, was brutally raped and killed in a church building. In less than a week, a sixteen year old was gang raped and killed in Ibadan, Oyo state.

In the first week of June, the same year, a thirteen year old was gang raped and left half dead by four men in Kaduna, Nigeria. These are but a few of many unknown cases of rape. Statistics has it that 1 out of every 4 girls is sexually molested. The issue of rape is a recurring sensitive issue cutting across various jurisdictions and generations. There are different perspectives and points of view on this issue with each a culminating from a variety of factors. In this article, the authors, aspirants to the Nigerian Bar attempt to evaluate the causes of rape of women, from the historical, sociological, psychological, moral, spiritual and legal perspectives, as well as proffer solutions. The two authors are of the opposite sexes, in order to balance the probable gender sentiments towards the issue of rape.

Rape is defined as the act of forcing sexual intercourse upon another person without their consent or against their will; originally coitus forced by a man on a woman, but now any sex act forced by any person upon another person. See also sections 357 Criminal Code Act and 282 Penal Code for the definition of rape in Nigeria.

History of Rape

Rape dates back to antiquity. Robert Kawashima, who teaches Biblical law at the University of Florida, referenced the ancient near east, including Israel, as having an improper notion of ‘forcible rape’–just adultery with another man’s wife or fornication with another man’s virgin daughter. The other man, in either case, was the victim of the crime. In Babylonia, if a woman who was set to be married was raped and she was a virgin, the rapist would be killed. But if the woman was married, she would be killed, too. In Assyria, the father of a rape victim was allowed to rape the rapist’s wife as punishment. In Israel, if a woman was raped within the city, she would be killed with the man. If outside the city, she would be forced to marry the man. (See full article at https://www.vice.com). In Rome, if the woman was married, she could be tried for adultery. As a matter of law, rape could be committed only against a citizen in good standing. The rape of a slave could be prosecuted only as damage to the owner’s property. Even under the Christian civilization in Rome, women were being blamed for rape. Constantine ordered the female should be punished along with the male “abductor” as she was still considered an accomplice, “on the grounds that she could have saved herself by screaming for help”. In the African culture, rape was highly frowned at. The man was seen to have brought shame on his family and community for committing such an abominable act, and severely punished for it. However, the woman was thereafter discriminated as being unclean, especially if she was a virgin, and might end up not being married.

In the modern era, it was in 1285 that rape was made a capital punishment in England, but jurors were always reluctant to convict people of the crime because women were perceived of as temptresses who asked for or deserved assault, according to historian Sean McGlynn. In pre Columbus America, women were seldom raped. If they were, however, there were native courts, who would decide. And the victim was given power to choose what kind of punishment for the man.

Sociological and Psychological Approach to Rape

From the foregoing, it is obvious that history over time has influenced how the society today views rape. It is often seen as what the victim deserves, for different reasons. Instead of empathising with the victim, the blame is put on her for being the temptress. The evil and lustful mind of man is not always seen. This no doubt, has informed the cause of the consistency of the act against women. Other sociological causes include: poverty, physical environment, family and peer influence, early child exposure, wrong sexual orientation, alcoholism and drug addiction, gangs activities, war, ethnic clashes and so on.

In their article, “The Emotional and Psychological Aspects of Rape”, published in the Journal of Evolution of Medical and Dental Science, Vol. 3 Issue 34, Aug 11, 2014, Smrithi Chabra, Devdas Rai and Kevin Abraham Chacko pinpoint the psychology behind rape as follows:

Men disadvantaged by reason of low socio-economic status. For lacking the means to secure a woman, they resort to rape.
Opportunist Rapists, who seek out women and only resort sexual violence or rape if such women are not receptive.
High mating effort rapists similar to the second category, who are more sexually experienced, aggressive and dominant, and employ tactics to achieve their plots.
Others include: having low opinion of women, anger against women and urge to dominate them, lack of knowledge of the impact of rape on the victim, antisocial traits in men, low self-esteem (for example, inability to courageously propose for a relationship) and so on.
Moral and Spiritual Perspective

Low moral standards in society have also contributed to the menace of rape. The sacredness of the act of sex, which both in the African tradition and other religions of the world, has been disregarded. Sex which is meant to be an act between lawfully married couples, is indulged in by anyone who feels the urge to. Lust and lack of self control among men are equally a contributory factor. In order to justify this weakness, men use the immodest dressing as an excuse for rape. It is vital to state that some women dress indecent. However, this can never be used as a license to rape the woman. What happens to correcting such a woman? It is a temptation. Agreed. But temptations can be overcome. Also, lack of acceptance of truth make men indulge in this ignoble, inhumane act. If a man knows he desires a woman but does have lawful right to have her, he is meant to accept that fact.

Legal Approach

Having considered the diverse perspectives about rape, legal point of view will be delved into here. There is no gain saying that the legal framework in Nigeria on this issue is deficient and inadequate. The definition of rape given in both the Penal and Criminal Codes as well as State Criminal Laws are flawed with evident gaps. These definitions are not gender neutral but gender specific. They also do not accommodate recent evolving sexual acts such as anal, oral intercourse and so on. The Violence Against Persons Prohibition Act is progressive in this aspect as re-defines rape in ample terms but unfortunately applies only in the Federal Capital Territory.

The problem associated with prosecution of rape such as lack of privacy of the victim’s identity, prolonged trial time, lack of trained personnel handling rape cases which require sensitivity and empathy, problem of corroborative evidence as a matter of judicial practice which is to come from medical evidence or eye witness clog the fair criminal adjudication of this offence in Nigeria. These are discriminatory procedures that require change in our Criminal Justice system like in other jurisdictions such as the English Criminal Justice and Public Order Act 1994 which has abolished the need for corroboration in rape cases.

The standard and burden of proof in rape cases is one that persecutes female victim and makes the trial that of the victim rather than that of the accused.

Effects of Rape on Women

‘It is five minutes of pleasure for him, but for a life time of pain for her’ goes the popular saying. The effects of rape on women are numerous. The worse of it is that of psychological trauma. The humiliation and stigma associated with rape is what keeps majority of the victims from disclosing it. Depression, flashbacks- memories of rape as if it was taking place again, suicide attempts and intentional self-harm, sleep and eating disorders, anger and guilt, hyperactive sexual desire disorder among others are the psychological consequences of rape.

The physical effects upon the victim are: pain, injuries, sexually transmitted diseases, unwanted pregnancy and even death. The social impact of rape on the victim includes, self withdrawal, vengeance, hatred for men among others. This leads to the victim’s reluctance to committing to a man subsequently, affecting the instruction of marriage and procreation. (See Smrithi Chabra et al, supra).

Conclusion and Recommendations

The causes of rape range from historical, sociological, psychological, moral and legal factors. The belief system and legal approach to the issue has contributed to its ravaging effects. The effects of rape on the woman and society are devastating. This act is highly condemned and must be discouraged. In light of this, the following are recommended to stop the crime of rape:

Proper orientation of men: men should see all women as humans like them, with equal rights. Women are not weaker vessels. Even if men see them as such, they should rather protect them than taking undue advantage. Victim blaming should seriously be discouraged.

Women must also take precautions to protect themselves, by arming themselves when necessary and being vigilant to avoid being prey to these perpetrators.

On the part of religious leaders, the truth must be taught. For example in Islam, according to a Sunni hadith, the punishment for committing rape is death, there is no sin on the victim, nor is there any worldly punishment ascribed to her. In the Christian religion, rape is considered a sexual sin, since it is an act contrary to the sixth commandment. Therefore, preaching to men about lust and lack of self control should be as often as preaching against indecent dressing among women.

Self control and discipline must be imbibed by men: the truth must be accepted as to fact that a woman does not submit to you is not yours to have.

Laws that incriminate rape and punish same should be reviewed. The definitions of rape in these laws should be reviewed and revised to make them gender neutral and not gender specific. These laws also need to be reviewed to make them accommodate recent evolving sexual acts such as anal, oral intercourse and so on. A leaf can be borrowed from the Criminal Law (Sexual Offences and Related Matters) Amendment Act (2007) of South Africa and the definition of rape given by the United States Department of Justice as these laws are gender neutral and take into cognizance these various sexual acts.

Rapists should be severely punished and the actors in the legal system should refrain from indirectly prosecuting the victim and pampering the perpetrators. Just like other solutions have been proffered, punitive measures through legislation for the punishment of this offence is also necessary. These punitive measures and principles are with a view to providing a sustainable solution to curb this menace. The ‘duty of care’ principle elucidated by Lord Atkins in the of Donogue v. Stevenson will be adopted. This principle encompasses a general duty of care that exists between two parties under the ‘neighbour principle’. For the sake of clarity and understanding in this discourse the dictum of the law lord will be replicated;

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”

The physical and biological attributes of women and children makes the table tilt more in their favour on this issue. She embodies more sensitive features and characteristics compared to her male counterpart in this aspect and is therefore more vulnerable. She requires protection from the opposite sex that is supposedly stronger because his biological and physical attributes make it so. Thus, drawing from the duty of care principle set out above, each and every person has a duty to protect the other generally. And more specifically in this aspect the males where required, owe a duty of protection to females around them. This is to ensure that other degenerate males who seek to perpetuate this crime around them are brought to book or even prevented from doing so. This can be through males around, whether related to the female or not, preventing such abuses.

What then happens when these males who are supposed to be protecting females are the ones perpetuating the crimes? This is where the law kicks in. The law should be made in such a way that this breach of the duty of care is made criminal. Both the perpetrator himself and those who should have properly prevented the perpetuation should be severely punished unless the latter can successfully prove that they have discharged such a burden. This is to make each and every person more vigilant towards the needs and protection of females around them in this regard.

Additionally, punishment upon conviction as castration in addition to any other punishment should be imposed. This is because rape offenders are more often recurrent offenders and so upon conviction they should be punished in this manner as they have lost the right to having the part of the body used in perpetuating the offence and to prevent future perpetuation. Drastic measures such as these are much needed to reduce this menace. This may be a temporary legislation punishing such offenders to run for a particular period to serve as a deterrent. This castration can be done medically in order not to totally occasion a violation of human rights or inflict torture.

The standard of proof should be reviewed as well. A principle similar to the tortious doctrine of res ipsa loquitur (the facts speak for itself) should be adopted and incorporated in our laws regarding rape cases. Where it is evident or it is established that there is a prima facie case of rape, this should be the standard of proof. For example, a case where there are video recordings or pictures of the crime evidently showing there was rape and there is a specific accused person, res ipsa loquitor should be the standard of proof. Bearing in mind the extent of the burden it places on the defense and the fact that our criminal justice system is proof beyond reasonable doubt in all cases murder inclusive, this should be imposed for a limited period of time to serve its punitive purpose of discouraging such criminal tendencies and conducts.

Also, in order to prevent cases where false accusations are made against persons of rape, the law should also provide punishment of imprisonment for any person who falsely accuses another of rape and other positive steps to prevent the occurrence of this and restoration of the name and reputation of such wrongly accused persons.

In totality, radical and positive action by law makers and the judiciary, affirmative action, total re-orientation and overhauling of belief systems that promote the entitlement of a male to a female that can culminate in rape should be taken. Objectification of females in the society (for example, Posters in hotels of unclad women and the likes) which is somewhat rampant now should be stopped as this is a failure of the society to protect its citizens (females in this instant) as it allows for the breach of the duty elucidated above. It is also a violation of public morals and policy as it exposes children to such obscene vices.

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