Rape is the most grievous of all sexual offences. This is because it completely obliterates the person of the victim and it is usually devastating in its aftermath effect (s).
Both the Criminal Code(applicable in Southern Nigeria) and The Penal Code (applicable in Northern Nigeria) make provisions criminalizing rape in sections 357 and Section 282 respectively.
According to Section 357 of the Criminal Code, Rape is “having 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 act, or, in case of a married woman, be personating her husband.”
For the purpose of brevity, I will quickly adumbrate the two vital elements or ingredients of the offense of rape that the prosecution must prove beyond reasonable doubts to ground the conviction of an accused.
2. Lack of Consent
What then is penetration?
By section 6 of the Criminal code, the offense of rape is complete upon penetration.
Penetration is the thrusting or the inserting of the penis into the vagina of a woman or a girl. The penis does not have to go far into the vagina before a case of rape can be made. It need not go beyond the labia minora of the vagina of a woman or a girl.
The rupture of the hymen, the ejaculation of semen, and the climax are all irrelevant. The implication of this is that a Virgin who was raped may remain a virgin even after being raped.
Also, penetration as recognized by the two Codes( The Criminal Code and The Penal Code) is "genital penetration". That is, between the penis and the Vagina. The Codes do not recognize penetrating the vagina with objects such as rape or anal rape. Although, a case of sexual assault or indecent assault can be made.
However, the frontier has been expanded by the Violence against Persons (Prohibition) Act 2015 but unfortunately, this lofty law has not been domesticated by all the 36 states in Nigeria save for the F.C.T Abuja and some states in Nigeria.
Also, as long as the Criminal Code and the Penal code are concerned, only a woman can be raped and only a man can rape. An exception to this is a male child below the age of 12. There is an irrebuttable presumption that a male child below the age of 12 is incapable of penetration. Hence, he can not be charged with the offense of rape and as such there can be no conviction.
However, he may be charged with Indecent Assault contained in section 360 of the Criminal Code.
Another point to note is that the two Codes do not recognize Marital rape. This is provided for in section 6 of the criminal code.
However, a husband may be found guilty of assault if he uses force or injures his wife while trying to have his way. Where the marriage has been dissolved or a judicial pronouncement has been made, then a case of rape can stand.
However, this is not the case under the Violence against Persons Prohibition Act 2015.
-Object Rape is recognized
- Marital Rape is recognized
- A man can be raped
-Anal Rape is recognized
Unfortunately, this lofty law has not been domesticated by the 36 states in Nigeria save for the F.C.T Abuja and some states.
Regarding the lack of consent, consent is central to the proof and disproof of the offense of rape.
Section 73 of the English Sexual Offences Act 2003 defines it as
"A person consents when he agrees by choice and he has the freedom and capacity to make that choice"
-Consent obtained by force is not consent
-Consent obtained by personating the husband of a married woman is not consent.
-Consent obtained by misrepresenting the act of sexual intercourse to the victim is not consent.
In the case of obtaining consent by economic or political promises and advantages which later fail to materialize, it is submitted that there is consent and as such, no case of rape should stand.
Finally, it should also be noted that a prostitute can be raped as the law was not enacted to uphold the tenets of morality but to protect individuals in the exercise of their choice to engage in sexual activities.
The punishment of rape is contained in SSections358 and 283 of the Criminal Code and Penal Code respectively. The maximum punishment is Life imprisonment.