The innovative impact of the Violence against Persons (Prohibition) Act, 2015 in the criminal justice system of Nigeria particularly in sexually sensitive offences is very undeniable.

This is simply because; the Act came in to cover the naked asses of the existing primary statutes on sexual offences particularly. The commendable innovation of the Act can be succinctly traced to the extension of the offence of rape to be gender neutral so that female sex can also be charged for the offence of rape. Not only that, the Act provides among others; the Prohibition of female circumcision or genital mutilation, forceful rejection of a spouse from home, abandonment of family without sustenance, spousal battery and indecent exposure. The focus of this paper is to examine the extent of chargeability of the female sex for the offence of rape. For the purpose of appreciative organization of argument, the writer will first explain what rape connotes under the Criminal Code and Penal Code with few words. Thereafter, the focus of this paper with be treated and ended with a conclusion that albeit the VAPP Act, where a female penetrates the male sexual organ, she will not still be convictable for the offence of rape under the Act.

The Offence of Rape under the Criminal Code Act and the Penal Code

Rape is an offence both against humanity and morality. It is criminalized by virtue of section 357 and section 282 of the Criminal Code and Penal Code respectively. The Criminal Code provides that ‘Any Person who has unlawful carnal knowledge of a woman or a girl…’, the inferable conclusion from the section is that only a woman or a girl can be a victim of rape and a male sex cannot fall victim. Similarly, the provision of the Penal code also says; ‘A man is said to commit rape who… has sexual intercourse with a woman…’, which means that the Penal Code also follows the route of his twin brother (Criminal Code).
Unfortunately as clearly seen from the above, the two codes do not envisage a situation whereby a male will be raped by a female sex. Perhaps, the requirement of penetration as required by the two Acts and as also judicially blessed in the cases of IKO vs State (2001) 14 NWLR (Pt 732) and OGUNBAYO vs the State (2007) 8 NWLR (Pt 1035), affirms that penetration is the insertion of the male sexual organ into the female sexual organ. That is to say, the laws do not envisage a situation whereby the male truly penetrates but out of threat, force, intimidation, impersonation by the female sex. This, to my mind, is what the Violence Against Persons (Prohibition) Act, 2015 came to address.

The Innovation of the VAPP Act, 2015 in the offence of Rape

Joyfully, the Violence against Persons (Prohibition) Act was signed in by the National Assembly on the 25th May, 2015. The innovations of the Act are commendable, appreciable and plausible as it tends to regulate several sexual abuses that are being daily encountered in matrimonial houses (like spousal battery, abandonment of spouse and children without sustenance and so on). Not only that, it also tends to regulate any sexual harassment and assault that can be encountered outside that (like restatement of law on rape, indecent exposure and others).

Importantly, the question this paper seeks to address is whether with the innovation of the Statute in restating the law on rape, a Male sex can be raped by a female sex? The question cannot be answered without objectively quoting the relevant portion of the Act. So, by section 1 of the VAPP Act, 2015;

(1) A person commits the offence of rape if-
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…
It is worthy of note that the section provides that ‘A Person’, which means it can be a male sex, female sex or hermaphrodite. Then, it continues that if ‘He or She’, meaning that the offence of rape can be committed by a Male Sex or a Female Sex. This seems to be one of the innovations brought by the VAPP Act as against what is obtainable in the Criminal and Penal Code.

Furthermore, the Acts continues that he or she ‘intentionally penetrates’. The focus of this paper is not in any way to enlist all the ingredients of Rape in the section, but to explain the culpability of a female sex for the offence of Rape under the Act. So, the question begging for answer is what penetration implies? It is however quite unfortunate that the VAPP Act does not define what it meant by Penetration. Sadly enough, the Criminal Code and the Penal Code do not also define what penetration is. Interestingly and thankfully, the definition of penetration is inferable from the case of Ogunbayo vs. State, where the court said;

“The important and essential ingredient of the offence of rape is penetration. Sexual Intercourse is deemed complete upon proof of penetration of the penis into the vagina…”

That is to say, penetration is the insertion of the penis into the vagina no matter how slight. This definition is supported by the definition of penetration as given by the Black’s Law Dictionary (10th Edition) which beautifully says;

“Penetration is the entry of the penis or some other part of the body or a foreign object into the vagina or other bodily orifice”

Note that, the definition given by the court in the Ogunbayo’s case only envisages that the object of penetration is by penis while that of the Black’s Law Dictionary envisages that any other object apart from penis can be used for penetration (e.g. finger and others).

To say further, one will definitely conclude that the VAPP Act, by saying that ‘with any other part of his or her body or anything else’, has broadened the concept of penetration in rape offence to include penetration by any part of the body or any other object that is not part of the body. However, one must be very diligent in reading that provision of section 1(1)(a) of the VAPP Act. The reason is that the provision although, provides that a female sex can penetrate with any part of her body or any other object, but the question is that while the Act was enumerating what can be penetrated, penis is never listed. This simply means that the Act does not envisage the reality of today which is that females now penetrate the male sexual organ.

Thus, only the Anus and the mouth of a male sex can be penetrated. Another question is that what can a female sex use to penetrate the anus or mouth of a male sex? Can vagina penetrate into the anus of a man? Can vagina penetrate into the mouth of a man? Mind you, licking is never penetration?! However, the writer agrees that the anus or mouth of a male sex can be penetrated with an external object or some other parts of the female body but not vagina.

In conclusion, the writer can only infer the following conclusions from the provision of section 1(1)(a) of the VAPP Act, 2015 in relation to penetration;

Penetration of a male sex with any part of his body (penis, finger inclusive) or an object (sex toy, vibrator and others) into the vagina, anus or mouth of a female sex (that is deemed mature in law) is a rape. However, the penetration into the Nose or other parts of the female sex is not rape in law. At worse, the male sex would be charged for lesser offences, such as sexual assault, indecent assault.
A female sex who inserted the sexual organ of a male sex (penis) into her own vagina has not committed the offence of rape, because penis is not mentioned among what can be penetrated. The act only mentions ‘vagina, anus and mouth’.
A Female sex who penetrates the anus or mouth of a male sex with other parts of her body (not vagina) or with an object has committed the offence of rape.
A Female sex can rape another female sex if the former penetrates with other parts of her body (not vagina) into the vagina, anus or mouth of the latter.
A Male Sex can penetrate into the anus or mouth of another male sex and it will amount to rape.
It is very ridiculous that a female sex who penetrates a male sexual organ without his consent cannot be convicted for the offence of Rape under the Act, because penis is not among what the law envisages that if they are penetrated, the penetrator becomes liable under the section. To my mind, this cannot be what the National Assembly contemplated although that is the interpretation of the section. This dilemma undoubtedly, resulted from bad drafting of the statute. It is hereby recommended that the Act should be amended to insert ‘Penis and other bodily orifice’ among what can be penetrated by saying;

“A person commits the offence of rape if-

He or she intentionally penetrates the vagina, penis, anus mouth and other bodily orifice of another person with any other part of his or her body or anything else…”
The writer also recommends that instead of making the Act to be only applicable to F.C.T Abuja as provided in section 47 of the Act, all other 36 states should also domesticate the VAPP Act which carries the phrase suggested ‘Penis and other bodily orifice’.

ByDauda Ridwan Sarumi

[email protected]

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