Quite recently, the issue of rape has returned as a trending topic in Nigeria (again!) and social media has been buzzing – different stories, different parties, different scenarios and of course, different opinions. “Is this rape?” “How is she a victim?” “What do women want?” “This is so unfair!’ are some of the questions/statements various commentators have had. So, the purpose of this article is to briefly (re)educate the Nigerian public about basic and fundamental points about rape that I do not think people seem to appreciate.
I should state at this point that as always, I have written this from an objective perspective – so this is not intended to vilify males or campaign against victim-shaming.
What is rape?
RAPE is NOT what you say or think it is – RAPE IS WHAT THE LAW SAYS IT IS! Rape is not just some social concept or issue that exists in the abstract; there is a legal definition of rape and if an encounter fits into this definition, it is rape. It does not matter what the parties thought it was or was not.
The definition of rape in Nigeria depends on your location and what legislation applies. Law Padi has helpfully summarised the rape laws in Nigeria (and if you click on each law, you will be taken to an external link where the relevant law can be found online):
- The Criminal Code – this is applicable in all the Southern States
- The Penal Code – this is applicable in all the Northern States
- The Criminal Laws of Lagos – this is applicable only in Lagos State
- The Violence Against Persons Prohibition Act – this is applicable in only the FCT Abuja.
- The Child Rights Act – this is only applicable in the States which have domesticated it
In summary, these different laws essentially have a recurring theme in terms of the definition of rape. Taking all these together, the nearly one-size-fits-all legal definition of rape in Nigeria can be said to be:
“The intentional penetration of a woman’s anus, vagina or mouth by a man with any part of his body or anything else 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 impersonating her husband. However, sexual intercourse between husband and wife is not rape.”
The Criminal Laws of Lagos goes a step further by stating in section 258(4) that: “Sexual intercourse is complete on the slightest penetration of the vagina.” In other words, “Just the tip” can be rape.
So, no matter the scenario or the context, so long as the sexual encounter did not happen between husband and wife, if it fits into the legal definition of rape, the offence has been committed. The punishment for rape can be up to a maximum of life imprisonment [with or without caning].
Is consent freedom?
There is a very famous quote often cited in the context of constitutional law: “Freedom once given cannot be taken away” (Blackburn v. Attorney General). In the context of sexual offences in Nigeria (unlike the United Kingdom), however, it is unclear whether consent once given can be taken away; it is also unclear whether consent can be granted after initial non-consent. However, on a literal interpretation of the definition of rape, I believe that it is possible that consent can be withdrawn after it is granted under Nigerian law (this is the case under English law) because in simple terms, once a woman clearly says “no”, any further intentional penetration is definitely against her will; to interpret otherwise would be absurd. I say a contrary interpretation would be absurd because using theft as an analogy, it will still be theft if I abscond with X’s car, even if I initially borrowed the car from X with X’s consent and at the time that I asked X for his/her car, I had a clear intention to return it i.e. I did not initially intend to abscond with it.
So, in judging whether an encounter amounts to rape or not, a key ingredient (which is often taken for granted) is the mental element of the crime. The only time where the mental element is irrelevant is in relation to children (depending on the applicable law, this could be as low as fourteen years and below) – sexual intercourse with a child is an automatic rape offence (statutory rape) regardless of whether the victim consented or the fact that the perpetrator did not know the victim’s age or believed that the victim was an adult.
As such, it’s better to be safe than sorry – consent (between adults) is not freedom!
Is the law unfair?
To some people, the law on rape is unfair because it protects only women (outside the confines of marriage) and does not take into account other “possible scenarios” – yes, I agree and personally, I am of the view that the Nigerian law on rape outside the FCT is gender-biased. However, the law on rape, like most other crimes, has a history; this history (in brief terms) was based on the need to protect women from a specific harm that was identified as specifically inflicted on women. It is the same way that laws on domestic violence were initially focused on protecting female victims but now, some jurisdictions are beginning to consider more gender-balanced domestic violence protection laws to cater for non-female victims of domestic violence, as well as other classes of perpetrators.
Some may ask about what protections males have from being raped by females – again, it is not legally possible for a woman to “rape” a man in Nigeria (except where FCT law applies) because there is a fixed definition of rape and this law contemplates that rape is perpetrated by males against females. If the same scenario that may be classified as rape happens to a man (i.e. perpetrated on a man by a woman or even another man), this at best can be described as sexual assault. On the contrary, the law applicable in the FCT anticipates that it is possible for a man to be raped (by a woman or even another man), as well as a woman being the perpetrator of rape against another woman.
From the legal definition of rape, it is very possible that the woman might not even think or understand that she has been raped, but it is what it is.
In relation to marriages, under Nigerian law (as at today), a man is not legally capable of raping his wife. The fact that this remains the law is rather shameful (in my opinion), considering that as far back as 1991, even England recognised the possibility for a man to rape his wife. But for now, if a husband forces himself on his wife and a scenario plays out that fits into the definition of rape, under Nigerian law, she has no protection because the husband is protected by the same laws that criminalise rape – is this fair? I think not. But again, it is what it is.
The law on rape in most parts of Nigeria is out-of-date and desperate for much-needed reform. So, rather than argue and make noise on social and other media about whether or not a set of facts resulted in rape, focus should be on educating the public about the law on rape (and other sexual offences) and there should be a hunger for reform – a specific national legislation (applicable across all states in Nigeria and the FCT) focused on sexual offences should be enacted, such law should be as progressive as recent similar legislation on the topic, which should also be more gender-balanced. The FCT seems to be on the right track with the enactment of the Violence Against Persons Prohibition Act. Until such time that reform takes place, everyone needs to remember PRICK:
- Punishment for rape could be up to life imprisonment [with or without caning];
- Rape is what the law says it is, not what you think it is;
- Ignorance of the law is no defence;
- Consent is not freedom – it can be given and taken away at any time; and
- Know your rights – whether as a victim or the accused.