Firsts Baba Isa|8 August 2017
There is an ongoing discussion on rape on the blogosphere which has raised many legal questions. I have seen a lot of intelligent people make wrong legal conclusions and this article is an attempt to provide short answers to the rather long questions. Please be guided that I write as lawyer, devoid, to a large extent, of the accompanying emotions that hang over the issue of rape like an albatross.
What is rape? Can a man be raped?
Section 357 of the Criminal Code, defines and explains rape as:
“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 threat or intimidation of any kind, or by fear of harm, or by means of false and fraudulent misrepresentation 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 wordings of the above section it is audible to the deaf and visible to the blind that the framers of this law don’t agree that a man can be raped. Rape is simply “… unlawful carnal knowledge of a woman or girl, without her consent…” It is pertinent to point out here that the provision of the Criminal Code is applicable to the Southern States of Nigeria.
In the Penal Code which is applicable to Northern States, rape is defined and explained in Section 282 thus:
(1) “A man is said to commit rape who, except in the case referred to in subsection (2) of this section has sexual intercourse with a woman in any of the following circumstances –
(a) Against her will;
(b) Without her consent, with her consent, when her consent is obtained by putting her in fear of death or hurt;
(c) 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 another man to whom she is or believes herself to be lawful married;
(d) With or without her consent, when she is under fourteen years of age or of unsound mind.”
Again, the wordings of the Penal Code, supra, is clear: rape is what a man does to a woman, a crime a man commits against a woman. Period.
The Child Rights Act under the heading “‘Unlawful Sexual Intercourse” provides in Section 31 that:
“(1) No person shall have sexual intercourse with a child.
(2) A person who contravenes the provisions of subsection (1) of this section commits the offence of rape and is liable on conviction to imprisonment for life.
(3) Where a person is charged with an offence under this section it is immaterial that:
(a) The offender believes the person to be of or above the age of eighteen years, or
(b) The sexual intercourse was with the consent of the child.”
Interestingly, the Child Right Act did not mention the gender of the child, in section 1, supra; so one can safely conclude that it refers to both male and female children. This might just be the first law that contemplated the possibility of men being raped. However, I submit that the traditional definition of “sexual intercourse” as sex between a man and a woman usually adopted by our courts will put a joke on this seeming impartiality.
In 2015 a new law was enacted and singed which is set to change the frontiers of rape as an offence. With the introduction of the Violence Against Person (Prohibition) Act 2015, the traditional definitions and elements of rape is set to change drastically. Let’s look at the provisions of Section 1 of the Act:
“Section 1 provides thus:
(1) A person commit the offence of rape if –
(a) He or she intentionally penetrates the vagina, anus or mouth of another person with any 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.
(2) A person convicted of an offence under subsection (1) of this section is liable to imprisonment for life except:
(a) Where the offender is less than 14 years of age, the offender is liable to a maximum of 14 years of imprisonment.
(b) In all other cases, to a minimum of 12 years imprisonment.
(c) In the case of rape by a group of persons, the offenders are liable jointly to a minimum of 20 years imprisonment without an option to pay fine.
(3) The court shall award appropriate compensation to the victim as it may deem fit in the circumstance.
(4) A register for convicted sexual offender shall be maintained and accessible to the public.”
The provisions of section 1 (a) of VAPA has answered in the affirmative, the question if men can be raped. A woman, going by this law, can be guilty of rape if “… she intentionally penetrates the vagina, anus or mouth of another person with any part of … her body or anything else…” I supposed “anything else” as used here will include cucumber, dildo, etc.
Another radical introduction in this law is that it makes even children culpable of rape. Section 30 of the Criminal Code provides that “A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.” He can only be convicted for indecent assault not rape. But section 2 (a) of VAPP states that “Where the offender is less than 14 years of age, the offender is liable to a maximum of 14 years of imprisonment.” No minimum age requirement was stipulated here, that means “Where the offender is less than 14 years of age…” could mean if the offender is even 1 year old, as long as he or she is less than 14 years of age he or she is capable of being culpable of rape; only a different punishment will apply,
The part of this law relating to rape has it shortcomings but I hold that it is indeed a radical and dynamic shift in this area that is commendable. The major drawback of this fine piece of legislation is that it is a federal law that is applicable in the Federal Capital Territory, Abuja for now and need domestication by States Houses of Assembly for it to be become operational in the states.
I call on the States Houses of Assembly to do the needful.
SAY NO TO RAPE!
Firsts Baba Isa (FBI) is a Legal Practitioner and writes from Abuja.
FBI LEGAL, 07037162029.
