THE OFFENSE OF RAPE

The history and phenomenon of rape and violent sex emerged early in human history. It was first reported when a young man named Shechem from Canaan had forceful sexual intercourse with Dinah, the daughter of Jacob. Another account of rape is fond at 2 Samuel 13:11-14 where Amon sexually violated Tamar his sister, contrary to her wish.

Having a brief historical (biblical) background of rape, it is now proper to ask the question, what is Rape? According to section 357 of the Criminal Code (laws of the federation of Nigeria 1990), the offense of rape is committed when:

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.

From the above, the following elements of the offense of rape can be deduced:

UNLAWFUL CARNAL KNOWLEDGE

            A person cannot be said to have committed the offense of rape if he has not had unlawful carnal knowledge of his victim even if the conduct happened in some cases without the victim’s consent. According to section 6 of the Criminal Code, unlawful carnal knowledge is defined as “carnal knowledge that takes place between people other than husband and wife”. This translates to the fact that a husband cannot be guilty of the offense of rape against his wife, he maybe be guilty of other offenses (may be wounding during attempting forceful sex) but not rape. Also, any other arrangement other than that of husband and wife is not recognized and therefore sex in such situation is considered unlawful.

            The philosophy behind this is that a woman having entered into a contract of marriage with a man is presumed to have given her tacid consent as to everything sexual that comes with it (marriage). So therefore, sexual intercourse is a legal consequence of marriage and for that the wife is deemed (having full capacity to contract) to have eternally consented to sexual intercourse in whatever way from the day of wedding, and for as long as they both live as man and wife.

            By this, it is interpreted that a married woman cannot bring or sustain a charge of rape against her husband under the Nigerian legal system.

OF A WOMAN OR GIRL.

            According to Nigeria’s legal system, the victim of the offense of rape MUST BE A WOMAN OR GIRL. The offense of rape cannot be committed against the male gender. It is only a woman or girl that can be raped under Nigeria law.

LACK OF CONSENT/WITHDRAWAL OF CONSENT.

            For any person (male) to be guilty of the offense of rape, he must have had sexual intercourse with the victim without her consent. The lack of consent is what determines the accused person’s guilt. Consent to sexual intercourse may be withheld through an act of resistance or verbally. However, a woman or girl who says or does nothing to stop a sexual assailant because she has been drugged or is asleep cannot be said to have consented to the act of sexual intercourse. Anyone who takes such advantage (of a drugged or sleeping woman or girl) to have intercourse has committed the offense of rape.

            Any woman or girl that consented previously to intercourse with a man may withdraw such consent in the course of the act. It is rape when a man continues to have sex with a woman or girl anytime after she withdraws her consent to the act. For example, it will (is) be rape if A who at 10:05pm continues to have sex with B who withdrew her consent at 10:00pm when he began the act.

OBTAINING CONSENT BY MEANS OF FORCE OR THREAT

              It is however irrelevant to say a woman or girl gave her “consent” to sexual intercourse with an accused, if that consent was gotten by means of force or threat.  Therefore, it is rape when a woman gives the accused her consent to him having carnal knowledge of her with the use of force, or intimidation.

            A rapist who applies lethal force (by way of gagging, beating and even wounding) to his victim with a view of over powering her in the course of the unlawful act will be deemed to have applied force as contemplated by law.

            The treat to shoot a victim with a loaded gun or stab the victim with a knife can push her into submitting herself to the unlawful act. This also is considered rape. Therefore victims who wish to prove to the court that they did not willingly consent to the act of sexual intercourse with the accused will bear the burden proving to the court that the act was carried out by force or threat if she can produce evidence of fairly serious injuries sustained as a result of actual resistance of the force employed by the accused. It will be very difficult to believe a plaintiff was raped if she comes out “unscratched” with her clothes and lingerie intact and without bruises. However a weak and timid person may out of fear and harm submit without resistance to the unlawful act by taking off her clothes and having intercourse with the accused which may lead to her coming out of it without being bruised or injured except he does so out of the fun of it. Provided that consent was not freely given in that circumstance, the assailant will be guilty of the offence of rape.

FALSE AND FRAUDULENT MISREPRESENTATION AS TO THE NATURE OF THE ACT.  

Any person found to have had carnal knowledge of a woman or girl by way of False and fraudulent misrepresentation made by him, as to the nature of the offense, is guilty of the offense of rape. This means that a woman or girl who gave her consent to intercourse with the accused based on a false and fraudulent misrepresentation of fact made by him is deemed to have been raped by the accused.

            But for such misrepresentation, the intercourse might have not happened. In that sense, the court will see the consent given as no consent. For instance a teacher who had intercourse with a female student under the guise that it will improve her intelligence quotient (IQ) was found guilty of rape. What she bargained for was not what she got for the “consent” given by her was on the strength of the accused person’s fraud and it is not consent at all.

PERSONATING A MARRIED WOMAN’S HUSBAND.

            A person will be guilty of the offense of rape if he has unlawful carnal knowledge of a married woman by personating her husband. This occurs where a woman has difficulty recognizing or identifying her husband due to reasons of blindness or mental instability. An accused may take advantage of any of the situations to have unlawful carnal knowledge of the woman, much as Jacob took advantage of Isaac’s blindness to pass himself off as Esau.

As in the case of one who makes a fraudulent and false misrepresentation, the consent given by a married woman (physically or mentally unstable) to anyone that personates her husband cannot be tolerated.  She would have in all probability (in her right minds) not consented to sex with the accused if she knew he was not her husband.

Section 358 of the criminal code goes further to prescribe the punishment for rape if found guilty as life imprisonment with or without canning.  While section 359 puts the punishment for attempted rape (which is a felony) if found guilty as fourteen years imprisonment with or without canning.