By Tobi Idowu.

Introduction:

There is no confusion as to the fact that rape has become an endemic ravaging Africa’s largest country. The statistics tell it!

In 2015, the United Nations International Children Emergency Funds released a publication that revealed that 1 in 4 girls and 1 in 10 boys in Nigeria had experienced sexual violence before the age of 18.[i]

The Centre for Environment, Human Rights, and Development made a report that 1,200 girls had been raped in Rivers state in the year 2012.[ii]

According to the Nigerian Bureau of Statistics, there have been 2,279 cases of rape and indecent assault.[iii]

Most recently, the Inspector General of Police on Monday, 15 June 2020 reported that the Nigerian Police recorded 717 rape cases nationwide between January and May.[iv]

It is not safe to conclude that the numbers are an accurate representation of rape cases in the country. How about those who were too ashamed to report their case? How about those who silenced theirs through mediation because the perpetrator was a relative and they have to protect their name? Apparently, the number of rape cases in Nigeria is far more than what is in the record.

In the commission of this heinous and inhumane act, there are four actors, viz: the perpetrator,  the victim & the society on the one hand, and the law on the other hand. Given the prevalence of the act, it is impossible to address the issue with prejudice to one of them.

The Perpetrator, the Victim, and the Society.

It is somewhat unbelievable and interesting that perpetrators of this act seem to find a justification for their actions. Some blame it on the seductive appearance of the victim in the name of “men are not wood”, some others blame it on the influence of intoxicants, some even say they did it to revenge what the victim had once done to them. Some go as far as blaming it on the devil- while this may have an iota of truth based on some belief, it is however not a justification. At any rate, there can be no justification for raping another. As a matter of fact, it will do more good to call them by their names: rapist,  rather than place them under the umbrella of  “perpetrators“.

According to a meta-analysis of 28 studies of women and girls within the age of 14 and above who have had an experience of rape, 60 percent of women did not acknowledge that they had been raped.[v] The reason for this is not far fetched. Society should be the solace of the victim, but on the contrary, society has resorted to blaming the victim, making it difficult for victims to report their case to the relevant authority.

Victim-blaming occurs when the victim(s) of a crime are held partially or entirely at fault for the harm that befell them.[vi]  Mostly, the act of victim-blaming occurs in sexually related crimes. For instance, there is a high degree of victim-blaming in rape cases than cases of armed robbery.[vii] No doubt, in Nigeria, the society is guilty of victim-blaming. The common way victims are blamed is to blame them for the way they dressed. It is believed that sexual provocative dress stimulates sexual aggression from a man. This may have a unit of truth but does not justify the act as there have been numerous cases where the rape victims were modestly dressed and well covered.  How about raping a minor who prima facie has no sexual organ that could have possibly triggered the sexual urge of the rapist? If this is about body exposure, how about the insane women that move about the streets stark naked?

Other examples of victim-blaming include blaming the victim for walking alone, staying late at night, et cetera. This may appeal to common sense, it however does not give anybody the right of action to rape another.  The menace caused by victim-blaming is that it introduces a rape culture in the society, an environment where rape is prevalent and sexual violence against women is normalized and excused In the media and popular culture.[viii]

No one has any moral or legal justification for rape. The society must shun all forms of victim-blaming and rape culture as they make most people erroneously feel they are entitled to a woman’s body because she is not properly dressed or she walked alone at night. At this juncture, it is necessary to state that rape is not a mere result of sexual aggression but premeditation for an after-thought. Hence, the real show of power of a man is in his self-control and not his spontaneous response to some alleged sexual aggression.

The Law

Amnesty International, 2006 stated that the state of Nigeria’s poorly defined criminal laws and weak law enforcement creates an environment where rape is committed freely. Sadly, this is still true as there has been no significant improvement in the laws that relate to sexual offenses without prejudice to the Violence against Persons Prohibition Act 2015 which is only applicable in the Federal Capital Territory.

The principal on sexual offenses in Nigeria is the Criminal Code, applicable in southern Nigeria and the Penal Code, in Northern Nigeria.

Under the Criminal Code,[ix] 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 impersonating her husband, is guilty of an offense which is called rape.”

The Penal Code similarly but with a slight difference, provides that “A man is said to commit rape who…has sexual intercourse with a woman in any of the following circumstances:-

  • Against her will
  • Without her consent
  • With her consent when her consent has been obtained by putting her in fear of death or of hurt
  • 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 another man to whom she is or believes herself to be lawfully married.
  • With or without her consent when she is under fourteen years of age or of unsound mind.
  • Sexual intercourse by a man with his own wife is not raped if she has attended puberty. “

The Criminal Law of Lagos 2015[x] also contains almost the same provisions as in the Criminal Code.

From the given definition of rape in the above statutes, it is a misnomer to say they are applicable in this contemporary. The flaws of both statue, among  others, are as follows;

  1. The statutes that only a woman can be raped. In recent times, there has been news of men and boys being raped either by fellow men or by a woman.
  2. The offense of rape only encompasses unlawful carnal knowledge which is the penetration of the vagina. Rapists are becoming dynamic in carrying out this degrading act and hence are not restrained to the penetration of the vagina, but other means also which the law did not foresee.
  • The law is more concerned about the relationship between the perpetrator and the victim than the act. Hence, a woman cannot be raped by her husband. It is the opinion of the writer that it is a gross injustice to a woman and a violation of her fundamental right to dignity.[xi] It is the opinion of the writer that a woman does not sacrifice her fundamental right to dignity on the altar of marriage. This rule was adopted from the common law, however, it was repealed in 1991 by the decision of the Court of Appeal and subsequently the House of Lords in the case of R v R.[xii] Sadly, Nigeria still holds on to the rule.

Likewise in practice, the court has by way of some of its decisions encouraged the act.

The ingredients in proving rape are quite stringent to convict an accused who has prima facie committed the crime. In addition to the essential ingredients to prove rape as stated by the court in Ogunbayo v state, [xiii] the evidence adduced must also be corroborated.[xiv] Corroboration is defined as independent evidence that connects the accused to the offense charged.[xv] Corroboration is not a requirement stipulated in the law and so should not be made mandatory especially in cases where the guilt of the accused is apparent.  Thus,   a  rapist would not be convicted for rape in the absence of corroboration even though he might have indeed committed the act.

The Court should be precluded from imposing unworthy sentences on convicted rapists. The punishment imposed must match the gravity of the offense of rape. In the case of Lucky v. the state,[xvi] the court convicted the accused of rape and sentenced him to five years imprisonment with hard labor or alternatively a fine of  NGN300,000.00 as opposed to the mandatory life imprisonment. This is undoubtedly a ridiculous sentence that will obviously open doors for more rapists. Similarly, in Post v the state the trial judge sentenced the appellants to a 3-year jail term. Such sentences do not serve the purpose of the law- punishing offenders and protecting society.  In consonance with Adekeye JSC when the case was on appeal, “The offense of rape is by every standard a grace offense which leaves the victim traumatized and dehumanized. A light sentence as in the case of the appellants must never be imposed. This may have the unsavory effect of turning rape into a pastime by our flippant youths.”

In order to curb the crime, more relevant legislations to prevent rape should be enacted and should follow the recommendations slated out in the Handbook for Legislation on Violence against Women from the UN Department of Economic and Social Affairs Division for the Advancement of Women. The following recommendations, inter-alia were made;

Legislation should:

  1. define sexual assault as a violation of bodily integrity and sexual autonomy;
  2. replace existing offenses of rape and “indecent” assault with a broad offense of sexual assault graded based on harm;
  • provide for aggravating circumstances including, but not limited to, the age of the survivor, the relationship of the perpetrator and survivor, the use or threat of violence, the presence of multiple perpetrators, and grave physical or mental consequences of the attack on the victim;
  1. remove any requirement that sexual assault is committed by force or violence, and any requirement of proof of penetration, and minimize secondary victimization of the complainant/survivor in proceedings by enacting a definition of sexual assault that either:
  • requires the existence of “unequivocal and voluntary agreement” and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting; or
  • requires that the act take place in “coercive circumstances” and includes a broad range of coercive circumstances; and
  1. specifically criminalize sexual assault within a relationship (i.e., “marital rape”), either by:
  • providing that sexual assault provisions apply “irrespective of the nature of the relationship” between the perpetrator and complainant; or
  • stating that “no marriage or other relationship shall constitute a defense to a charge of sexual assault under the legislation.”

Fortunately, the Violence against Persons Prohibition Act enacted in 2015 is a miracle move for the nation as it contains some of the afore-listed, however, the efficacy of the Act would not be seen if it remains restricted to the F.C.T. The 36 states of the nation must, therefore, take action to enact their own as soon as possible.

Conclusion.

When there is a disorder in a nation, something within the law is permitting it or absenr to prevent it. Examining the applicability of the instant law on rape with the exception of the Violence against Persons Prohibition Act 2015, it is not out of context to hold the law guilty and at such, it should be repealed! In like manner, the society is guilty of promoting rape culture through victim-blaming rather than condemning the act. It is therefore high time that the societal orientation about rape changed!

[i] https://en.m.wikipedia.org/wiki/Child_sexual_abuse_in_Nigeria#cite_note-UNICEF10Sept2015-4 accessed on 4 July 2020

[ii] Vanguard, “Hoodlums Rape 1,200 Girls in Rivers” (2013) https://www.vanguardngr.com/2013/02/hoodlums-rape-1200-girls-in-rivers/ accessed 6 July, 2020.

[iii] This Day, “Curbing Gender Violence in Nigeria” (2020) https://www.thisdaylive.com/index.php/2020/06/21/curbing-gender-violence-in-nigeria/ accessed 6 July,2020.

[iv] The Punch, “Nigeria records 717 rape Cases in Five Months, says IGP” (2020) https://punchng.com/nigeria-records-717-rape-cases-in-five-months-says-igp/ accessed 6 July, 2020

[v] Christine Ro, “Why Most Rape Victims Never Acknowledge What Happened.” (2018) BBC Future https://www.bbc.com/future/article/20181102-why-dont-rape-and-sexual-assault-victims-come-forward accessed 6 July,2020

[vi] https://en.m.wikipedia.org/wiki/Victim_blaming accessed 05 July,2020.

[vii] Ibid.

[viii] https://www.marshall.edu/wcenter/sexual-assault/rape-culture/ accessed 5 July, 2020

[ix] S. 357

[x] S. 258

[xi] Section 34, Constitution of the Federal Republic of Nigeria 1999(as amended)

[xii] [1991] UKHL 12

[xiii](2007) 8 NWLR (PT 1035) 157

[xiv] Posu &Anor V. The state (2011) 193 LRCN

[xv] Stephen v. State (2013) 8 NWLR (pt 1355) 153@157

[xvi] (2016) LPELR-40541 (SC)

Oluwatobi Idowu is a law student of Lagos State University(LASU). oluwatobiidowu01@gmail.com

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