MEANING OF RAPE UNDER NIGERIAN LAWS

 

What is the Offence of Rape all About?

The Supreme Court and the Court of Appeal have in a plethora of cases, given judicial imprimatur to the definition of “rape” in Nigeria as provided in the various penal laws. These laws are basically drawn from the Penal Code which governs northern Nigeria, while the Criminal Code holds sway in the southern parts of the country. State Houses of Assembly have therefore promulgated for their various states, state penal laws on every aspect, including rape. Excerpts from a few of the judgments are discussed below.

In the case of Edet Okon Iko v. The State (2001) SCNJ 39, the Supreme Court defined “rape” to mean:

“Rape” in legal parlance means a forcible sexual intercourse with a girl or a woman without her giving consent to it. The most important and essential ingredient of the offence is penetration and consent of the victim is a complete defence to the offence.

Also, in the case of Kazeem Popoola v. The State (2013) 55 NSCQR 707 at 738, rape is considered as follows:

Rape is unlawful carnal knowledge of a girl or woman without her consent, by force, fear or fraud, and it is an essential ingredient of that offence that the intercourse must be without the woman’s consent. In other words, a man will be said to have committed rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and at the time, he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. Even when consent is obtained by force or threat 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, the offence can be committed. See; Sunday Jegede vs. The State (2001) 14 NWLR (Pt. 733) 264, (2001) 7 SC (Pt. 1) 122.

Arising from both cases, it is established that for rape to be proved there should be absence of consent, as well as evidence to show that there was an actual penetration of the vagina of the woman/girl by the penis of the man. Also, where such consent is obtained by fraud, that component of fraud vitiates the consent.

The above judicial pronouncements having been understood, it is important to proceed into the statutory provisions that criminalize rape especially (for our purposes, in northern Nigeria) where the incidence occurred. In the north, by virtue of the provisions of section 282(1) of the Penal Code, rape is a criminal offence. That section provides as follows:

“A man is said to commit rape who, save in the case referred to in subsection (2), has sexual intercourse with a woman in any of the following circumstances:”

“a. Against her will,

1. Without her consent;
2. With her consent, when the man knows that he is not her husband and that his consent is given because she believe that he is another man to whom she is or believes herself to be lawfully married;
3. With or thought her consent, when she is under fourteen years of age or of unsound mind.”

It should be noted that while the Penal Code held sway as the extant law on rape in northern Nigeria, its provisions were accordingly interpreted. Thus, in the case of Aliyu Gazali v. State (2019) ECL 3191 SC 1, the Supreme Court held as follows:

By virtue of the provision of Section 282(1) of the Penal Code:

“A man is said to commit rape who, save in the case referred to in subsection (2), has sexual intercourse with a woman in any of the following circumstances:”

“a. Against her will,

1. Without her consent;
2. With her consent, when the man knows that he is not her husband and that his consent is given because she believe that he is another man to whom she is or believes herself to be lawfully married;
3. With or thought her consent, when she is under fourteen years of age or of unsound mind.”

A prosecution must satisfy the Court by proving that all the ingredients of the above offence are present in the case at hand. That is, a prosecution must prove that:

“i. That the accused has sexual intercourse with the woman in questions;

1. That the act was done in the circumstance falling under any of the five paragraphs in Section 283(1) of the Penal code,

iii. That the woman was not the wife of the accused or if she was his wife, she has not attained puberty;

1. That there was penetration.”…

In the case at hand, the evidence adduced by the prosecution is overwhelming. The Appellant had offered his victim a ride and drove her beyond her destination to a solitary hideout to perpetrate the wicked and indecent act of rape…

It is however important also to explore the most current legal innovation on the definition of “rape” as provided by the National Assembly in the Violence Against Persons Prohibition Act (VAPPA) 2015. Before we look into what that law says on this topic, it is important to note that the criminal jurisdiction of Nigeria is divided into the north and the south. Loosely put, the criminal law of the north as provided above, is the Penal Code, while that of the south is the Criminal Code. However, for Abuja, the provisions of VAPPA, 2015 are deliberately made to supersede the provisions of the Penal and Criminal Code in any fields that are touched. And at the level of the states, most state Houses of Assembly have also passed the Violence Against Persons Prohibition Laws (VAPPL) to cater for the needs of the indigenes of those states. Benue state is one of those states where the VAPPL has been promulgated and is operational.

Section 45 of VAPPA provides:

45. General Savings and Repeal

(1) Any offence  committed or proceedings instituted  before  the  commencement of this Act under the provisions of the –

(a)       Criminal  Code,  Cap. LFN,  2004

(b)       Penal Code,  Cap. LFN,  2004

(c)       Criminal Procedure Code,  Cap. LFN,  2004

(d)       any  other law  or  regulation  relating to any act  of violence defined  by this  Act shall  as  the  case  may  require be enforced or continue to  be enforced by the provisions  of this  Act.

(2)       Any  provision of the  Act shall  supersede  any  other provision  on  similar  offences  in the Criminal  Code, Penal  Code  and Criminal  Procedure Code.

The implication of the section 45(2) of VAPPA is that wherever the Penal Code or Criminal Code provides for any issue like rape, the provisions of the VAPPA 2015 or any of the VAPPL in the states that have them will take precedence over those of the two previous codes on matters of rape.

The above having been established, we must necessarily consider now, the provisions of VAPPA as regards this issue. As if to clearly portray the position of priority accorded to cases of rape, the very first section of VAPPA, 2015 provides for rape, extending by a wide margin, the earlier definition given to that offence in the two previous codes. Thus that section provides the definition and punishment for rape as follows:

1. Definition of Rape

(1)      A person commits the offence of rape if-

(a)       he or she intentionally penetrates the vagina, anus or mouth of another person  with  any other part of his or her  body or anything  else;

(b)      the other person does not consent to the penetration;  or

(c)      the consent  is  obtained  by force  or means  of threat  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 the use of any substance  or additive  capable  of taking away  the  will  of such person  or in  the case of a married  person  by impersonating his  or her spouse.

…

It is pertinent to submit at this point that where rape is charged under the VAPPA, or any similar provisions of the VAPPL at the state levels, the requirements of the law for proving same have now been broadened in terms of penetration. Thus, oral sex or anal sex if done without consent, also constitutes rape. Also, where any person uses the now popular “date drug” for instance, to get their victim drowsy and has his or her way with them, this amounts to rape.

Salient Points to Note on the Current Meaning of Rape

First, the definition of rape in Nigeria today has been expanded in the VAPPA, 2015, and the various state Houses of Assembly made VAPPLs. Thus, by the new definition section 1 of VAPPA, takes the question of who could be raped away from the purview of just the female gender. This is possible because rape can now occur once it is shown that a person’s mouth, or anus has been penetrated by another. Thus, a male, who does not naturally have a vagina, can still be raped if it is proven that the attacker penetrated his mouth or anus, pursuant to section 1 of VAPPA, 2015.

Second, the absence of consent component of rape has also been expanded in the VAPPA definition. The innovation of section 1(1)(c) VAPPA, 2015 provides inter alia that where sex intercourse occurs when the victim is unconscious vide “the use of any substance or additive  capable  of taking away  the  will  of such person”, rape has thereby been established. It is common place to hear tales of ladies who get raped in their drowsy or semi-conscious state by the rapist who sometimes surreptitiously introduce additives or substances in soft drinks for their victims, before the act. Thus any person who ‘drugs’ another, and has sex with them has committed rape and will be punished.

Finally, it is observed that with the coming into effect of VAPPA, 2015, the innovations in that law will definitely require that the appellate courts in Nigeria open up the definition of rape. Thus, the celebrated requirement for ‘penetration’ of the ‘vagina’ by the ‘penis’ simplicita will have to give way to the current requirement of penetration of the ‘mouth’ and ‘anus’ by either the penis or any other part of the body of the rapist or indeed, with any other weapon.

Conclusion

The law on rape in Nigeria has been broadened since the coming into effect of the VAPPA, 2015, as well as the VAPPL of the various state Houses of Assembly. The new legal regimes provide for a more robust legal order in the prosecution of the very serious offence of rape. It should be noted that (1) there is no option of fine for rape under the new dispensation, (2) the Judge is empowered to order compensation to the victim, and (3) a register for sexual offenders is also ordered to be opened for persons convicted of rape.