National Mirror www.nationalmirroronline.net
Monday, October 21, 2013
Law of rape in Nigeria THE ADVOCATE OLUGBEMI FATULA
08037213732 (sms only) E-mail: afribic@yahoo.com
R
ape is one if not the most brutal and atrocious gender-based form of violence that can be committed against women. Women are violated not just physically but also psychologically. Their freedom has become violated. Rape is used as a form of dominance over women in times of war, by husbands over their wives (in some cases) and generally. In the then war torn Yugoslavia, rape camps were used as a form of ethnic cleansing and sexual terrorism. Victims who have survived rape ordeals have been reluctant to speak about it for reasons such as the stigma attached to having been raped, the difficulties faced in obtaining a conviction, fear of being rejected by their husband, his family or her family, the amount of public attention given to the crime and also because of the difficulty of giving a positive or accurate identification of the perpetrator. Where the victim and perpetrator previously had a sexual relationship, the victims chances of obtaining a conviction is diminished. Soldiers and combatants, those in positions of authority and power such as the police, opportunistic common criminals and bandits have during war periods taken advantage of the situation, to use rape as a weapon of war against pregnant, elderly women and girls as young as eleven years old. The law on the offence of rape in Southern Nigeria is as provided for under Section 357 of the Criminal Code which states that: “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 personating her husband is guilty of an offence which is called rape.” This same Code defines “unlawful carnal knowledge”
as “carnal connection which takes place otherwise than between husband and wife.” In the Northern part of Nigeria the definition of rape as contained under Section 282(1) of the Penal Code provides that: “A man is said to commit rape who … has sexual intercourse with a woman in any of the following circumstances:- (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) 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 the man to whom she is or believes herself to be lawfully married; (e) with or without her consent when she is under fourteen years of age or of unsound mind.” A conviction of rape under the Criminal Code is punishable with imprisonment for life with or without caning whereas under the Penal Code it is punishable with imprisonment for life or for any less term and shall also be liable to a fine. The law on rape in Nigeria is archaic and need to be amended to apply to current day situations as was done in England, where the government reviewed the law in this area with a view to making it appropriate for this century. The applicable law to the offence of rape in England is the Sexual Offences Act 2003. It is gender neutral and non-discriminatory so that both men and women are equally protected. A man can rape another man whereas the law in Nigeria makes no provision for this. One can be raped through the vagina, anus or mouth. Rape, assault and sexual assault of a child under thirteen is also an offence. Under Section 1 of the Act:
(1) A person (A) commits an offence if –(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis; (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents. (3) Sections 75 and 76 apply to an offence under this section. (4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life. The Act also makes assault by penetration an offence, which is liable on conviction to imprisonment for life. Sexual assault is also an offence which on summary conviction, a person guilty of the offence would be liable to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both. If a person is convicted on indictment, the sentence is imprisonment for a term not exceeding 10 years. The English Sexual Offences Act 2003 has finally put to death the principle in DPP v. Morgan (1976) AC 182 as the law for the first time defines consent. A person is defined as consenting if he or she agrees by choice, and has the freedom and capacity to make that choice. Thus a defendant’s belief that consent was given must be honest and reasonable. The Act has also introduced a presumption that in certain situations such as where one is threatened with immediate violence or is unconscious, the victim did not consent. On the other hand, in Nigeria an accused will not be convicted if he proves that he honestly believed that the victim consented. There is no age limit as to who is capable of raping one under the English Act. One may thus conclude that if a defendant is capable of penetrating the vagina, anus or mouth of another person with his penis, that person is capable of committing the offence of rape if found guilty.
Law & Justice EVENT
L-R : Mr.Niyi Akintola, SAN and the Lagos State Governor, Babatunde Fashola, SAN at the just concluded International Bar Association (IBA) Conference held in Boston, United States of America.
Former First Vice President, NBA, Mr. Ikeazor Akaraiwe, Mrs. Funke Adekoya, SAN and the Managing Director, Law Pavilion, Mr. Ope Olugasa
Funke Aboyade, SAN, Mr. Femi Falana SAN, Mrs. Funmi Falana and Chief of Staff of the Economic and Financial Crimes Commissions EFCC, Mr. Kayode Oladele
A CONVICTION OF RAPE UNDER THE CRIMINAL CODE IS PUNISHABLE WITH IMPRISONMENT FOR LIFE WITH OR WITHOUT CANING
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Mr. Ricky Tafa, SAN and Chief Emeka Ngige, SAN