ABSTRACT
This study sought to appraise the offence of rape under the Nigeria Law. This study employed a doctrinal method. Rape is a destructive crime on the victim across the globe. The victims are devastated physically, psychologically and emotionally. The trauma of rape leaves the victims with scars throughout their lifetime and makes it impossible for them to relate with other people and the opposite sex. The work analyzed evolutionary psychological perspective on why people rape and with the emergence of permissibility and adoption of same sex relationships and marriage in some jurisdictions across the world, it is evident that a man can rape a man, a woman can rape a man and a woman can also rape another. Other developed countries have constantly amended their laws on rape, unfortunately under the criminal justice dispensation in Nigeria, the legal framework on the crime of rape needs urgent and necessary reviews both substantively and procedurally as canvassed in this study. The Nigerian Criminal and Penal code should be compared with other provisions of the world and reviewed so that the ambiguity in our laws can be clear and direct like other foreign jurisdictions. It is recommended that the concept of rape particularly in terms of prosecution should be urgently revisited and amended in order to ensure justice for the victims and meet up emerging trends of rape in the Nigeria. It is concluded in this work that except the laws on rape are reviewed, victims will continue to have their rights to justice breached due to the lacunae in the law while the perpetrators of this heinous crime will continue to live above justice and commit more of this crime.
CHAPTER ONE
INTRODUCTION
1.1 Background of the study
Rape has always been with mankind. However, in recent times, the incidence of rape has increased in Nigeria. Early law on rape was enacted with a view to protecting virgins from rape, abduction and forced marriage. It was also the intention of the law makers to protect the interest of a father in the virginity of his daughter or the interest of a husband in his wife’s fidelity.[1] The laws were made to protect women mostly virgins and wives, this shaped the common law definition of rape which is maintained in some jurisdictions like Nigeria. However, there is a progression in the offence of rape, it is evident in recent years that men are also victims of rape and should be protected by the law. Also, they are other evolving sexual practices which can be used by a person intending to have forceful sexual connection with another, for instance, the penetration of the penis into the anus or the mouth, or the penetration of any other part of the body into the vagina. This has steered many countries to update their laws on rape.
Many Nigerian women who have been raped suffer in silence without reporting the incident to law enforcement agencies.[2] The culture of silence aggravates this problem partly from humiliation and intimidation of victims by the police as well as the embarrassment of public acknowledgement and also the rigor in proving rape. In addition to this, being ostracized by those who consider rape as bringing dishonor to the woman’s family and community worsens the situation.[3] Thus many rape victims are unwilling and afraid to testify about their experience and the rapist goes ahead for the next victim. It isn’t false stating that rape is pandemic in Nigeria, between 2001 and 2005, 10,079 rape cases were reported. The same study also indicated that only 18 per cent of rape cases in Nigeria are reported.[4]
Culturally, it is an offence which stands on the same pedestal with the offence of murder since a suspect accused of rape is expected to go into hiding while his people make efforts to cleanse the shame on the face of the family of the rape victim. Despite all these, the offence of rape in Nigeria seems to be on the increase and the question on every lip is what the cause is? Does it mean that the punishment stipulated for it in the extant laws is no longer heavy enough to deter would-be rapist or are there factors which ostensibly offer more incentives for rape than the risk of its punishment. Furthermore, there is the fact that women have always been perceived as the weaker vessel, and so have been subjugated and oppressed by culture in most African societies.[5] The culture is defined by inequality and the subjugation of the female folk. Forms of gender-based violence, including rape, domestic violence and other sexual abuses, have assumed serious dimensions globally.[6] Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person’s consent.[7] The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent.[8]
Since time immemorial, rape which is one of the oldest crimes in the history of the human race has caused a lot of pain and agony to individual rights with different jurisdictions spelling out the punishment if anyone is found guilty of same. However, till date, rape has continued to occur with no sign of ceasing but rather on the increase in virtually every part of the world. This act which at a certain time was largely perceived to have occurred as a result of lust does not seem to be so anymore. However, victims of rape have no age limit as babies, and the aged are vulnerable to this menace. Interestingly 90% of victims of rape are female[9].
1.2 Statement of the problem
As far back as 2011, a human right lawyer Caroline Ajie, estimated that about 2 million Nigerian girls experience sexual abuse annually.[10] This estimation was also confirmed by the Nigerian Minister of Women Affairs and Social Development (FMWASD), Dame Pauline Tallen at the 2019 international day for Elimination of violence against women. These coupled with the most recent report of the rape of an 18-year-old Miss Barakat Bello in her home at Ibadan, the case of 11 men raping a 12-year-old girl in Kaduna, and also the rape of Miss Uwa Omoziwa a 22-year-old student of the University of Benin (UNIBEN) at a Redeemed Christian Church of God (RCCG), Edo province in Benin, clearly shows how rampant rape is in our Country Nigeria. This article seeks to forensically explore the offence of rape in Nigeria, the defects of the Nigerian Criminal Law as regards the issue of rape, and, viable and sustainable solutions that would help in curtailing its rapid increase in the country.
In Nigeria, incidences of rape are fast assuming a threatening dimension that requires urgent intervention considering the increasing rate. Rape, like other forms of violence against women, is an infringement on women’s rights, privacy, self-preservation and dignity. Available data in the print and electronic media reveal that the issue of rape has become a serious social problem of epidemic proportions and no longer an isolated criminal act affecting just a few women in the society. In recent times the incidences of rape have increased at an alarming rate in Africa and also in Nigeria leading to the death of so many women. There is little or no policy or law that helps protect the victims as they are most times blamed, stigmatized and humiliated by the public if it is brought to the public domain. This hinders victims from embracing a mindset of reporting such an inhumane crime to the appropriate authority.
1.3 Objectives of the study
The main objective of the study is to examine the appraisal of the offence of rape under Nigeria law. The following are the specific objectives of the study:
To examine the causes of the increase in rape in Nigeria
To assess the punishment for rape.
To examine means to which rape can be curtailed.
1.4 Research questions
To examine the causes of the increase in rape in Nigeria
To assess the punishment for rape.
To examine means to which rape can be curtailed.
1.5 Research methodology
The methodology employed in this research is doctrinal. That is, both the primary and secondary sources shall be employed such as the examination of statutes, Case laws, law reports, textbooks by renounced scholars. Other library materials such as journals, newspapers had been made reference to. Of course, internet sources were considered for current trends on crime detection and prevention. Encyclopedias, thesaurus and police diaries have been made reference to.
1.6 Significance of the study
This study comes at a time when women in Nigeria feel dissatisfied and de-motivated due to what seems to be escalating activities related to rape. The findings of the study will therefore be handy in taming excesses on rape and therefore promote gender equality. The research will come up with recommendations on appropriate policies that will guide and inform appropriate management strategies on rape in Nigeria.
1.7 Scope of the study
This paper looks at the scope of the law on rape in Nigeria, the evolving development in the laws on rape in other jurisdictions with regards to the definition of rape, proof of rape, capacity to commit rape, consent, and victims of rape. The paper also made recommendations on how to develop the penal provisions on rape in Nigeria.
1.8 Limitations
The following limitations were anticipated in this study:
Since the study was only carried out in only one province, the results may not be generalisable to the whole country. The researcher collected data on his own without research assistants.
Financial constraints were also anticipated in the current study. The researcher did not have enough available funds to execute this study.
1.9 Literature review
In proving the offence of rape, there are certain ingredients the prosecution is expected by law to prove. In NdewenuPosu&anor v The state[11] the supreme court held that in the charge of rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove the following.
That the accused had sexual intercourse with the prosecutrix.
That the fact of the sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit, impersonation.
That the prosecutrix was not the wife of the accused
That the accused had the mensrea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.
That there was penetration.
In Okoyomon v The state the accused fell the plaintiff down, removed her pants and his pair of shorts and started to have carnal knowledge of her. The victim shouted for help, but the accused covered her mouth with a piece of cloth. He laid on her and inserted his penis into her vagina. The accused was charged with the offence of having unlawful carnal knowledge with a girl without her consent. On appeal, the supreme court considered the whole evidence and finally found that there was no evidence of penetration.
In the case of The Queen v AnofiSeidu,[12] the accused was charged with the offence of defilement of a girl under the age of eleven years. The girl was found sitting on the laps of the accused who was wiping her thigh with a cloth. The accused identified the cloth as his and it was found to contain human semen. On examination of the girl’s private part, no blood was found but human semen. The doctor who examined her couldn’t ascertain whether the rupture of the hymen was recent. The court found the accused guilty of indecent assault but not rape. The fact that semen was found in the vagina of the victim will not amount to penetration of the vagina, there must be proof of actual penetration. In Ibo v Zaria Native Authority,[13] where the doctor who examined the girl did not clearly specify what area of girl’s private part that was ruptured, the high court refused to accept the evidence as sufficient for the accused penetration of the vagina
Sexual intercourse will occur against the will of the female in a situation where the victim is in such a state that she can neither say nonor yes, for instance where victim is under the influence of drug. This is a situation where the victim is put in such a state that she cannot express her will.In R v Camplin[14], where the accused made the victim drunk and while she was insensible violated her, it was held that rape was committed without her consent and against her will. In this case the victim is put in such a situation that she cannot truly express her will. In practice, this is a situation that is more difficult to prove as the victim is not in a situation to oppose.
The phrase “ without her consent” is shown in a situation where the victim did not expressly or impliedly express her consent. In the case of In R v Young[15] the accused sneaked into the victim’s bed while she was asleep with her two children and her husband and proceeded to have sexual intercourse with her, she being asleep. When she woke up at first, she thought it was her husband and apparently did not resist, but on hearing the accused voice, she flung him off and called her husband. The accused ran away but was intercepted by a police constable. The accused was convicted of rape. In R v Mayers[16] Lush J held that if a man has or attempts to have connection with a woman while she is asleep, it is no defense that she did not resist. Where consent is given because of exhaustation after persistent struggle and resistance, it would appear to be no consent.[17]
The infraction of s. 1(1)[18] of the VAPP Act is punishable with life imprisonment. However, this is not a mandatory sentence. This is born out of paragraphs (a)–(c) of s. 1(2)[19] which gives the judge a discretion to impose sentences less than life imprisonment. Where the offender is below 14 years, he may be sentenced to a maximum of 14 years imprisonment. Offenders who are 14 years and above are liable to a minimum of 12 years imprisonment. In the case of gang rape, the offenders are jointly and severally liable to a minimum of 20 years imprisonment.[20]
There is no doubt that the VAPP Act has expanded the Nigerian Criminal Jurisprudence on Rape. It has introduced the concept of Oral rape by the penis and the non consensual penetration of the vagina, anus and mouth by any other part of a person’s body or object. Furthermore, the Act imposes severe punishment for rape than the existing Criminal Code Act and Penal Code Act. Under the VAPP Act, apart from cases of children below 14 years, the minimum sentence for rape is 12 years imprisonment[21]. Although the punishment[22] for rape under the criminal Code Act is life imprisonment, the Courts have not interpreted it to mean a mandatory sentence. For example, in Popoola v. State,[23] the appellant was charged under s.358 of the Criminal Code Law, Laws of Ogun State 1978, which is similar to s. 358 of the Criminal Code Act. The appellant was alleged to have raped a student of Abeokuta Grammar School, Ogun State. He was sentenced to 5 years imprisonment,[24] which sentence was affirmed by both the Court of Appeal and the Supreme Court. Also in Iko v. The State[25], the appellant was sentenced to seven (7) years imprisonment for rape of a school girl. However, the judgment was disallowed by the Supreme Court for want of corroboration.
In all cases of rape, the prosecution must prove that there was penetration. The Supreme Court has held that penetration is the most important ingredient of the offence of rape, and penetration no matter how slight is sufficient. It is not necessary to prove that there was a rupture of the hymen or an injury to constitute the offence of rape[26]. Another important ingredient of rape is corroboration. Corroboration is not a requirement of law but a rule of practice. However, it is usually required. In Iko v. State,[27] Kalgo JSC referred with approval to the definition of corroboration by Lord Reading in R v. Basker Ville[28], to wit: “…evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.” In other words, it must be an evidence which implicates the accused and confirms in some material particular not only the commission of the crime but also that the accused committed it.
In D.P.P v. Hester[29], Lord Diplock observed the danger which the rule on corroboration is intended to obviate. In the view of his Lordship, the risk is that the story told by the witness may be inaccurate. Whether the risk be of deliberate inaccuracy as in the cases of accomplices or unintentional inaccuracy as in the case of children and some complainants in cases of sexual offences[30]. Another reason for the rule requiring corroboration is to protect a person from being framed up for rape
[1]People v Liberto64 N.Y.2d 154, p 167 (1984)
[2] Caroline OkwumdiMuoghalu ‘Rape and Women’s Sexual Health in Nigeria: The Stark Realities of Being Female in a Patriarchal World’ vol 19,No 1&2 2012, pg 33-41.
[3] Hutton, D., Omidian, P., Miller, K., 2006, ‘Psychological Challenges and Interventions for Women affected by Conflict’, Women for Women International, http://www.eldis.org.com
[4] Peters, O. and Olowa, O., 2010, ‘Causes and Incidence of Rape among Middle Aged and Young Adults in Lagos State, Nigeria’, Research Journal of Biological Sciences, Vol. 5(10): 670-677. Stanley, L. and Wise, S., 1983, Bj
[5] Maier, S. L. (2008). “I Have Heard Horrible Stories…”: Rape Victim Advocates’ Perceptions of the Revictimization of Rape Victims by the Police and Medical System”. Violence against Women. 14 (7): 786–808. doi:10.1177/1077801208320245 . ISSN 1077-8012 . PMID 18559867.
[6] Rape and sexual violence: Human Rights Law and standards in the International Criminal Court. Amnesty International 2011
[7] Krug, Etienne G.; et al., eds. (2002). “World Report On Violence And Health” (PDF). World Health Organization. p. 149.
[8] A critical analysis of the UK’s definition of rape shows that the offence can only be committed by a man, though a man, like women, could also be a victim. Under the Department of Justice’s definition, on the other hand, both men and women may be victims or perpetrators. It is observed that both the US and UK’s definitions make use of the word “penetration”, instead of “carnal knowledge” or “sexual intercourse” as found in the Nigerian definitions of rape, which means that rape may be committed where a person’s vagina, anus or mouth is penetrated with penis, object or any part of one’s body whether there is sexual intercourse or not.
[9] Sexual Assault Prevention and Awareness Centre, University of Michigan available online at www.sapac.umich.edu/article/49
[10] <https://www.icirnigeria.org/fact-check-are-2-million-nigerians-raped-every-year/> Assesed on the 2nd of June, 2020.
[11] (2011) LEPLR, SC 134/2016
[12] 1960, WRNLR 32
[13] 1962, NNLR 30
[14] 1845, 1 Cox C.C. 220 i
[15] (1878)14 Cox C.C 114
[16] 12 Cox C.C 311
[17]Okonkwo and Naish
[18] Violence Against Persons (Prohibition) Act 2015, s.1(1).
[19] Ibid.
[20] Ibid, s. 1(2)(a) – (c).
[21] Violence against the persons (prohibition) Act, – s. 1(2) (a) – (c).
[22] Criminal Code Act, s.358.
[23] (2013) 17 NWLR (Pt 138).
[24] In Popoola v. the State, Supra, at p. 120, the Supreme Court criticized the sentence of the learned trial judge as being unnecessarily lenient and loose. However, there was no appeal against the sentence.
[25] (2001) 14 NWLR (Pt 732) 221.
[26] Ibid at p. 245.
[27] Ibid at p. 241.
[28] (1916 – 17) All E . R. 38 at 43.
[29] (1973) AC 296 at 315.
[30] Iko v. State, supra at p. 242.
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