The severity of the offence of rape cannot be over emphasized. Little wonder why a lot of pundits have advocated strict punishments for the offence.In the case of Popoola v.
State,iMuntaka-Coomasie J.S.C stated on rape that ―the offence appeared to be heinous and heartless. The sentence meted out by the trial court amounts to abdicating its role as a judicial officer. I condemn such type of sentence. The sentence is unnecessarily lenient and loose‖.In the samelight, Ngwuta J.S.C stated that―I join my learned brother in expressing disappointment that the appellant was given a lenient term of five years in prison. I think that the severity of punishment for rape, with particular reference to statutory variety, should rank next to capital punishment‖
Under the Nigerian Criminal Code Act, Rape is described as 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 the case of a married woman, byimpersonating her husband.iThis offence is punishable by imprisonment for life, with or without caning.iThe Nigerian courts have applied the law on rape as contained in the statutes and have held that rape is the act of sexual intercourse committed by a man with a woman who is not his wife and without the woman‘s consent.i By the provision of the Criminal Code Act, the prosecution must prove carnal knowledge, this position was upheld by the Supreme Court in Posu v The State,iwhere the court enumerated the ingredients of the offence of rape when it held that in a charge of rape or
146
unlawful carnal knowledge of a woman without her consent, it is the duty of the prosecution to prove the following ingredients beyond reasonable doubt,
that-(a) the accused had sexual intercourse with the prosecutrix;
(b) the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation;
(c) the prosecutrix was not the wife of the accused;
(d) the accused had the mens rea, 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, and
(e) there was penetration.
Further, section 6 of the Criminal Code provides that ―When the term ―carnal knowledge‖ or the term ―carnal connection‖ is used in defining an offence, it is implied that the offence so far as regards that element of it, is complete upon penetration.‖ The slightest penetration of the vagina by the penis is sufficient. It is not necessary that the hymen was ruptured or that there was ejaculation. The Supreme Court held in Ogunbayo v. The State,ithat
The essential ingredients of the offence of rape are penetration and lack of consent. Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. Emission is not a necessary requirement. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Thus, where penetration is proved but not of such a depth as to injure the hymen, it will be sufficient to constitute the crime of rape.
The Criminal Code does not recognise that penetration of a woman or girl‘s anus or mouth could be equally as traumatic as that of the vagina and that it should be considered as one
147
of the elements, which may constitute rape.i Only a woman or girl may be raped as far as the wordings of the Code suggest. Even though in this day and age, there have been cases of men claiming to be raped,i the Criminal Code Act does not take cognisance of this fact.i
According to section 30 of the Criminal Code Act, a male person under the age of 12 years is presumed to be incapable of having carnal knowledge. This is an irrebuttable presumption, which means that he cannot be guilty of the offence of rape or attempted rape, even if it is shown that he has reached puberty despite his age.i He may, however, be convicted of indecent assault. Since it is required that there must be genital penetration which a woman is incapable of doing, a woman would not be physically capable of committing the offence, but may be guilty of counselling or abetting rape. Interestingly, as put forward by Ijalaiye,i although a woman may not be physically capable of committing rape against a man or another woman, she may, however, be charged and found guilty of the offence of rape. This opinion he arrives at through the implications deduced under section 7 of the Criminal Code, which defines who a principal offender is. Section 7 provides that when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it-
(a) every person who actually does the act or makes the omission which constitutes the offence;
(b) every person who does or omits to do an act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person committing the offence; and
(d) every person who counsels or procures any other person to commit the offence.
148
Thus, whether one considers a woman in such a situation as either a principal in the first or second degree, or accessory before the fact, if her act is caught under any of the provisions in section 7, she would be considered as a principal offender of the crime of rape.i
The legal principle that a woman gives an irrevocable consent to sexual enjoyment on marriage to her husband still exists; since section 6 of the Criminal Code Act also defines unlawful carnal knowledge as ―carnal connection which takes place otherwise than between a husband and wife;‖ this implies that a husband cannot be guilty of raping his wife.i This exception is an old fashioned one, and is generally attributed to the fact that wives were viewed (and still are) as the husband‘s chattel, having been bought by them.i The wife is taken to have given her irrevocable consent to sexual enjoyment to the husband on marrying him.i However, where a husband uses force or violence against her, to exercise his right, he may be guilty of assault or wounding. The legal principle that a husband cannot rape his wife, would not apply in two situations. These are where the marriage has been dissolved or if a competent court has made a separation order which contains a clause that the wife is no longer bound to cohabit with her husband.i
As with English law, absence of consent from the victim is essential on a charge of rape.
The prosecution must prove that the accused had carnal knowledge of the woman or girl he was accused of raping, without her consent. The issue as to what is not considered as consent as given by the Criminal Code Act is restricted to certain acts.i Consent, which was 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 representations, is no consent. It is also rape to have carnal knowledge of a woman by impersonating her husband. Unfortunately, the principle in the decision in D.P.P v
149
Morgani is still good law, under the Criminal Code Act. In that case, it was held by the English House of Lords that ―an honest belief by a man that a woman with whom he was engaged with sexual intercourse was consenting was a defence to rape, irrespective of whether that belief was based on reasonable grounds.‖i
Accordingly, an accused person that pleads that he believed the woman was consenting does not bear the burden of establishing honest and reasonable mistake of fact under section 25 of the Criminal Code Act. Thus, the prosecution not only has the burden of proving theactusreusand the mens rea, but it must also prove as part of its case that the accused intended to have sexual intercourse without the woman‘s consent. In practice, the few cases which have come before the courts show how difficult it is to prove rape, even though it is obvious that the accused committed the crime.i
From the foregoing, it is obvious that there is a need to redefine the meaning of rape under the Nigerian law; as the seriousness of the offence of rape cannot be overstated.The features of rape under that the Nigerian legal regime which distinguishes it from the modern day conception, for example the fact that rape can only be committed upon penetration of the vagina and not any other part of the female physiology or the fact that a man cannot commit rape upon his lawful wife.i The current global trend on what constitutes the offence of rape demonstrates a complete and total departure from the traditional common law concept; rape has been defined to include a plethora of ingredients, including but not limited to marital rape, gender-neural definitions, penetration through the anus or mouth of the victim with the sex organ or any other body part of the perpetrator or with an object provided the victim who did not consent to the sexual act.i
150
Under the Penal Code applicable in northern Nigeria,a man is said to commit rape where he 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; and (e) with or without her consent when she is under fourteen years of age or of unsound mind.i
Mere penetration under the Penal Code Act is sufficient to constitute the sexual intercourse necessary to the offence of rape. Cases under the Penal Code Act shows the importance the courts attach in providing evidence of penetration to a charge of rape.iHowever, the definition of rape under the Penal Code Act is narrower than that under the Criminal Code Act in the sense that where the latter uses the term ―carnal knowledge‖ implying that penetration of the vagina could be done by penetration of a foreign object, the term ―sexual intercourse‖
under the Penal Code Act implies that only a penis can penetrate a vagina.iThe Penal Code Act does not define what consent is but describes what consent is not. Even then, it goes without saying that absence of consent from the victim is an essentialingredient to a charge of rape.iThe consent must not be obtained by force, fraud or misrepresentation.iApart from the various instances which the sections list as to what would not constitute consent; it is interesting to note that rape is still committed even where a girl who is under 14 years of age or of unsound mind consents.‖i
Whereas a male person under 12 years old is presumed incapable of having carnal knowledge under the Criminal Code Act, no such provision is made under the Penal Code Act.
There is, therefore, nothing to stop the prosecution from charging a child over 7 years of age, for
151
example, for rape if it can be shown that he has attained a sufficient maturity of understanding to judge the nature and consequence of his act.i
In addition, the principle in the decision of D.P.P. v Morgani is also applicable under the Penal Code Act. However, although a husband cannot commit rape on his wife,i he will be liable under section 83 of the Penal Code Act as an abettor, if the situation in D.P.P. v Morgani were to occur, as the section provides that ―where several persons are engaged or concerned in the commission of a criminal act each person may be guilty of a different offence or offences by means of that act.‖ Also, in the D.P.P. v Morgani type of case, if during the rape, the husband were to be around, he will be punished as a principal offender by virtue of section 90 of the Penal Code Act. Thus, actual presence when the act of rape is being committed and prior abetment by virtue of this section will be taken as having participated in the offence of rape. In Peter v The State,i it was held before the Federal Court of Appeal when applying section 90 of the Penal Code that once an abettor is found to be present at the commission of an offence he abetted, he automatically becomes a principal offender. The trial court must then convict such a person for the main offence and not for abetment.
It is clear that the provisions of the Criminal Code Act and the Penal Code Act applicable in Nigeria with regards to rape are not sufficient to tackle the ever-evolving phenomenon of the offence of rape; therefore it is imperative that these laws are amended in line with modern realties, to ensure justice for the citizenry.
As a result of the lacuna in the existing laws,human rights and women groups in Nigeria pushed for the passing of comprehensive legislation against gender-based violence; this resulted in the enactment of the Violence against Persons Prohibition Act, (VAPP Act) 2015,i which
152
proposed wide-ranging provisions of many aspects of violence, including violence against women, with the aim to transform the landscape of violence against women in Nigeria.iThe Act provides for a range of offences which constitute violence; including but not limited to rape, physical injury, spousal battery, harmful traditional practices, intimidation and coercion.
Amongst its innovative and progressive features is the definition of rape is now inclusive and gender-neutral. It provides that an offence of rape is committed if a person intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else; if the other person does not consent to the penetration or if the consent is obtained by force or means of threat or intimidation of any kind or by fear of harm.iIt also provides for compensation for rape as well as for criminal sanctions.i
It is clear that the VAPP Act is innovative and a step in the right direction in the protection of women and other victims of violence; as it makes elaborate provisions for various forms of gender-based violence.i Rape is one of the most pervasive acts of gender-based violence. While it also affects men, anecdotal evidence suggests that Nigerian women and girls are disproportionately affected.i Before the enactment of VAPP Act, the offence of rape was principally governed by the Criminal Code, Penal Code and Criminal Procedure Code; and has been established; these laws are outdated and lacking in a plethora of ways and often requiring the prosecution to prove thatthere is carnal knowledge, penetration of the vagina, that such penetration was unlawful, there was no consent; and that testimony is independently corroboratedi
The VAPP Act 2015 addresses these problems, and it supersedes all previous legislation on the same subject matter.iThe definition does away with the language ―carnal
153
knowledge.‖Thus, under the Act, the definition of rape, adopting clearer, simpler language, becomes more in tune with modern realities, more inclusive, and explanatory of consent.i The offence of rape has become inclusive against all genders. Victims of rape are no longer restricted to women and girls. Perpetrators can also be male or female. Moreover, penetration remains an important ingredient, however this now includes penetration of orifices other than the vagina, The offence is no longer limited to penile penetration - the use of ―anything else‖ to penetrate constitutes the offence of rape.i Spousal or marital rape is now recognised under the Act. In this regard, it can be reasonably assumed that in the absence of an expressexclusion, any husband or wife, who acts in contravention of the above section, is guilty of the offence of rape and punishable accordingly. ―The use of ―any person‖ clearly includes either husband or wife. With these modifications, the Act has brought the definition of rape in line with modern day realities and increased the scope of legal protection for victims.i It is imperative to point out that section 1 which deals with rape, clearly recognises the requirement of compensation. It states that, the Court shall also award appropriate compensation to the victim as it may deem fit in the circumstance.‖i This is an innovative and progressive provision in the Nigerian context.
Notably, Section 45 of the Act provides that any offence committed or proceedings instituted before the commencement of the Act under the principal criminal legislation, that is, the Criminal Code, the Penal Code and the Criminal Procedure Code and any other law or regulation, which is applicable to violence, shall continue to be enforced under the Act.It thus removes the application of other legislation on offences, which it articulates. It also provides in the same section that the Act shall supersede any other provisions in the principal criminal legislation that deal with similar offences under the VAPP Act.
154
However, despite the progressive nature of the VAPP Act, its geographic scope is narrow.The Act provides that only the High Court of the Federal Capital Territory empowered by an Act of the National Assembly shall have jurisdiction to hear and grant any application brought under the Act.iThis is attributed to the fact thatNigeria is a democratic state with a federal system of government. Legislative responsibilities are outlined in the Constitution, and in order to determine who bears the legislative responsibility on any particular issue in Nigeria, one must resort to the Constitution of the Federal Republic of Nigeria, 1999. In order to understand legislative prerogatives in regard to violence therefore, one must understand the constitutional provisions regarding violence.Violence clearly falls into the realm of criminal law. It is important to note that criminal law is, largely, a residual matter over which the states have power to make legislation exclusively.i
The VAPP Act legislates on clearly criminal matters, providing criminal penalties for offences that border on violence; as such it currently applies only to the Federal Capital Territory. It can therefore only be implemented, as things currently stand, in federal institutions throughout the country and in the Federal Capital Territory. From the foregoing, it would appear that the VAPP Act is of very limited relevance for the nationwide fight against violence against women in Nigeria. One could begin to wonder why women and civil society groups fought so hard for over a decade to see the Act passed into law if it would only apply to limited area and institutions in the country.i However, the VAPP Act has the potential to apply widely if and when it is adopted by States. Should it be adopted by States, it will override any existing laws on violence, including extant criminal law, as provided by the consequential amendment of sections of the Act.i