by Deji Olunlade

This female to male rape is otherwise called ‘made to penetrate” cases, it is, therefore, this writer’s submission that a more inclusive definition of rape be utilised, this is to include or reflect genuine concerns that a man or a boy can be victims of rape, the punishment in this respect should rank pari passu with that of a male sexual offender.

Rape is condemnable, it is an unjustifiable act in our society and it is, finally, time that we rise as a nation to condemn and eradicate this despicable act.

Victims of rape are made to suffer unquantifiable anguish, some become diagnosed with post-traumatic stress disorder, dissociation from reality, depersonalization, they endure physical violence, avoid social life, get infected with sexually transmitted infections, encounter serious difficulty in remembering events, relives moments of sexual assault and unwanted pregnancy amongst other ills.

The severity of the offence of rape cannot be over emphasized. Little wonder why a lot of pundits have advocated stricter punishments for the offence.

In the case of Popoola v State (2013) 17 NWLR (Pt 1382) P. 100 Per Muntaka-Coomasie J.S.C at page 120 paras G-H on rape said:

“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 same light,

Per Ngwuta J.S.C AT PAGE 12, Paras D-E said

“ 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 Criminal Code of Nigeria, Rape is defined, 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 case of a married woman, be personating her husband. This offence is punishable by imprisonment for life, with or without caning.

(See Section 357 and 358 of the Criminal Code Cap “C38”, Laws of the Federation, 2004)

In plain language, in Nigeria, a person has committed rape when he has sexual relations (carnal knowledge) with a woman against her will; or

a)      without her consent or,

b)      while putting her in fear of death or hurt or,

c)      misrepresenting as the husband of the woman or,

d)     having carnal knowledge of a girl under 14 years, with or without her consent or,

e)      having carnal knowledge of a girl with unsound mind.

Under the Penal Code (applicable in Northern part of Nigeria), it goes further to say even where the girl is a wife of the person, such person will be guilty of rape if she has not attained puberty.

 

The case of the former Governor of Zamfara state who was alleged to have married a 13 year old girl from Egypt comes in handy. In such situation, if the girl has not attained puberty and he has carnal knowledge of her, he will be guilty of rape. However, what will be regarded as attaining puberty under the law will probably be subject of debate.

The above postulation was given judicial backing in the following cases:

Upahar v. State (2003) 6 NWLR Pt. 816 p. 230

Ibo v. Zaria N.A (1962) NNCN 30

Okoyomon v. State (1973) NMLR 292

Rape is so despicable such that it warranted a notable pronouncement in the recently decided case of Edwin Ezigbo v. The State (2012) 16 NWLR Pt 1326 where My Lord Justice Muhammed J.S.C had this to say;

“the facts revealed in this appeal are sordid and can lead to a conclusion that a man can turn into a barbaric animal. When the “criminal” was alleged to have committed the offence of rape, he was 32years. His two young victims: Ogechi Kelechi, 8 years old and Chioma, 6 years, were, by all standard underage. What did the appellant want to get out of these underage girls. Perhaps, the appellant forgot that by nature, children, generally, are like animals. They follow anyone who offers them food. That was why the appellant, tactfully, induced the young girls with ice cream and zobo drinks in order to translate his hidden criminal intention to reality, damning the consequences. Honestly, for an adult man like the appellant to have carnal knowledge of underage girls such as the appellant’s victims is very callous and animalistic. It is against the laws of all human beings and it is against God and the State.

Such small girls and indeed all females of whatever age need to be protected against callous acts of criminally likeminded people of the appellant’s class. I wish the punishment was heavy so as to serve as deterrent”

Though rape as over the years been categorized  into various categories namely acquaintance rape, command rape, date rape, incestuous rape, fraud rape, underage rape, statutory rape, gang rape and marital rape just to mention a few, the big question is why is there a low rate of rape prosecution cases?

The writer has identified some of the reasons as follows:

1. Inability of victims to report cases to the police: This can be seen from the shame, hostility or neglect shown towards rape victims in Nigeria by family and friends. It ranges from openly mocking the victims to being neglected by close family members and friends. In some cultures, some are even seen as having brought shame and dishonour to the family.

There is a general lack of support from care agencies of government who should not ordinarily encourage these victims but also re-engineer a systemic re-integration of victims into the society.

Considering the statistics of decided cases on rape at the Court of Appeal and Supreme Court, a cursory look shows that most reported instances of rape are from underage children who do not usually understand the very nature of the offence. Most adults rather choose to suffer in pain and anguish due to the social stigma attached to it.

 

2. Lack of proper investigation: There is a general apathy on the part of the Police institution. A typical example will be that of a victim approaching a police station and the police officers insist on laying the complaint over the counter without trying to conceal her identity or guaranteeing her privacy or possibly requesting information that is not central to the genuine complaints.

As far as I am concerned, apart from the delay in commencing investigation or total lack of, the police institution is not adequately equipped in both human and material resources to effectively investigate rape cases.

There is a lack of specialized training for police officers in handling these cases or in providing support for the victims. Furthermore, forensic identification of suspects cannot be effectively carried out, the use of biological evidence such as blood, semen, saliva, vagina epithelial cells etc is totally lacking. There is serious doubt as to the existence of a functional forensic crime laboratory in Nigeria.

3. Weak legal sanctions and enforcement: This point has been mooted by Senator Helen Esuene when she moved a motion to protect infants and minors from the cruelty of rape and other abuses. The current Senate President, David Mark, retorted that “we must ensure that maximum sanctions are meted out to culprits of rape and sexual abuses”

Even though the offence of rape is in itself punishable with life imprisonment, other related offences such as indecent assault, sodomy etc carries lesser punishment.

It is not just expedient to ensure maximum punishment, it is also imperative to enforce this punishment in a very firm and decisive manner. The police authorities should courageously investigate and recommend for prosecution the alleged offenders. The judiciary should not shy away from handing out maximum punishment, when the occasion demands, to sex offenders. This will serve as a deterrent to other members of the public.

4. Legal requirement: In Nigeria, for the offence of rape to be properly established, there must be corroborative evidence which usually comes from eyewitnesses account or medical evidence. As regards eyewitnesses’ corroboration, the law requires that such witnesses must have witnessed the actual penetration of the victim’s vagina. How this is possible, practically speaking, at all times, defeats my wildest imagination. Most often than not, sex offenders will not undertake the abominable act in a place easily accessible to members of the public and there is always the possibility that before any eyewitness finally reaches a rape crime scene, the offender would have disengaged from the victim which ultimately means that rape as a criminal offence cannot be established but a lesser offence of attempted rape.

Secondly, the law requires that there must be penetration of the vagina, no matter how slight, this is in itself a laudable idea but modern realities has shown us that it is only the vagina that can be penetrated or defiled. This issue will be addressed in due course in this essay.

The other way through which corroboration can be established is through medical evidence which has been discussed above. The lack of human and material resources to medically investigate and reach conclusive findings in a rape case leaves a sour taste in the mouth.

 

NEW DEVELOPMENTS IN RAPE DISCOURSE.

LEGAL PERCEPTION OF RAPE.

Rape, as defined above, is now regarded as obsolete and as reproduced below:

“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 case of a married woman, be personating her husband”

Modern socio-legal realities have shown us that the legal definition of rape in Nigeria can no longer be applicable to effectively combat this rape menace. The first point of consideration is:

1. Female to Male Rape.

To many, this postulation seems unreal or rather ridiculous, the possibility of a female sexually assaulting a male seems remote but it is not rare and is, in fact, not a recent phenomenon. For as back as 1978, it was reported that a certain lady named Joyce McKinney in the case of the  popular “Mormon Sex in Chains” scandal was convicted for chaining a man and forcing him to have sexual intercourse with her.

The assumption that only females can be raped is due to a number of wrong or stereotypical reasons such as;

• Men always want sex or;
• Boys and men cannot be victims because they are easily physically aroused.

We must understand that the male erectile response is involuntary which is very similar to a female  response; we agree that a female while being sexually assaulted may still experience involuntary arousal which is a mechanical stimulation. This position is also applicable to men or boys. There are instances where a man can be scared, intimidated or blackmailed into engaging in sexual relations with a woman outside his wishes. Therefore, it is apt to say that men in Nigeria have been, over the decades, subjected to, social, political and legal double standards in this respect.

To further rebuff the claim that a man cannot be raped, the cases of Mary Kay Letourneau and Debra Lafave where teachers sexually abused underage boys who were supposed to be under their care. Recently, in Nigeria, there was a viral video circulating depicting a girl sexually assaulting a younger male.

This female to male rape is otherwise called ‘made to penetrate” cases, it is, therefore, this writer’s submission that a more inclusive definition of rape be utilised, this is to include or reflect genuine concerns that a man or a boy can be victims of rape, the punishment in this respect should rank pari passu with that of a male sexual offender.

 

2. Lesbian Rape/ Male to Male.

There may be instances where a girl may be a victim of rape by another girl or woman. With the advent of sex toys such as strap-ons, dildos, tongue, non-consentual tribalism or forced digital manipulation, it cannot be far-fetched to say lesbian rape is real. In a discussion with a Pharmacist friend, she described, in sordid details, her experience dealing with a man sodomised by another man. These acts have been left unchecked due to the social stigma and lack of service and support systems to the victims. A major source of concern in this regards will be the prisons. It has been reported that a lot of cases such as this emanates from there.

 

3. Spousal Rape.

For decades, especially in developing countries and with particular focus on Nigeria, there has been wide held and erroneous belief that a husband cannot rape his wife. As far as I am concerned, this is a rather outdated legal position, the ridiculous assertion historically stems from the following sources:

In Sir Matthew Hales 1736 Legal Treatise titled “Historia Placitorum Coronae or History of the Pleas of the Crown”, he stated “…hath given up herself in this kind unto her husband which she cannot retract”.

The Christian concept of ‘marital debt’ in 1 Corinthians 7:3-5 says “let the husband render unto his wife due benevolence and likewise also the wife unto the husband. The wife hath not power over her own body but the husband and likewise also the husband hath not power over his own body, but the wife…”.(emphasis mine) and the Quranic injunction which says:

“if a husband calls his wife to bed and she refuses and causes him to sleep in anger, the angels will curse her till morning”

Gender rights activists such as Elizabeth Cady Stanton and Lucy Stone have consistently maintained and singled out a woman’s right to control marital intercourse. Furthermore, there is the Declaration on the Elimination of Violence Against Women in December 1993 declared by the United Nations High Commissioner on Human Rights to be examined. Therefore, it is my humble submission that in as much as it is desirable to keep a family’s affairs private, it is also important to recognize that a woman, even though married, may refuse sexual intercourse with the husband for any reason or no reason at all. It will be appropriate to include spousal rape as a criminal offence, this will be in a positive light as other advanced countries specifically Eastern Europe and Scandinavian countries (before 1970), Western Europe (1980’s-1990’s), some developing countries (1990’s – 2000’s) have all criminalized spousal rape.

We must also recognize women who might be judicially separated, in an abusive marriage or in the process of obtaining a divorce, should we be compelled to accept that these categories of women be unnecessarily bound by law to engage in marital intercourse with an estranged husband when he so desires?

May it not be the intention of our legislature to impose this unbearable situation on our women. Therefore, spousal rape should be included in our criminal laws in plain and simple language with limits and exceptions clearly stated

 

Legal Requirement of “Penetration of the Vagina”.

It has been held in several legal and judicial authorities that for rape to be proved there must have been penetration of the vagina, even if slight. With due respect to our Learned Jurists, it is my humble opinion that a modification is necessary to this important requirement. The World Health Organisation (WHO), in 2002, defined Rape as “physically-forced or otherwise coerced penetration, even if slight, of the vulva or anus, using a penis or body parts or an object”.

 

The Federal Bureau of Investigation in 2012 went a step further to include as a part of the list oral penetration, likewise, the International Criminal Court Tribunal for RWANDA described rape as “physical invasion of a sexual nature committed on a person under circumstances which are coercive”

The recent case of the women physically assaulted and brutally sexually assaulted by shoving sticks and ground pepper into their private parts is instructive, this occurred in the Ejigbo area of Lagos state, Nigeria. Ordinarily, if the acts covered by rape has been extensive and made to include penetration not only by the penis but by objects, mouth etc and not only penetration of the vagina but other body parts, the perpetrators of this act (recorded in a video medium) would have been charged with rape and duly convicted.

Therefore, a more inclusive and all-encompassing definition of rape should be included in our criminal code and serve as parameters to determine acts which can be classified as rape.

Suggested Reforms and Ideas to curb the Rape Menace.

In order to be brief as much as possible, an attempt will be made at just highlighting the suggested reforms without dwelling on cumbersome explanation. Reforms and ideas include:

• Underage children should not be left unsupervised or with friends, relatives and guardians that are not trusted. As a matter of fact, parents should strive to actively monitor their children and ensure they are kept under close watch.
• Routine examination of private parts of children should be carried out surreptitiously to check for sources of any pain or untoward signs that may show any form of sexual abuse.
• The Legislature should ensure that anyone found to have abetted the commission of rape or is an accomplice of a sex offender should be made guilty of the act itself. Same gesture should be extended to anyone that procures the rape of another.
• Medical evidence must be encouraged once a victim reports at a hospital or police station. Forensic examination resources and personnel such as rape kits, voice analysis, facial recognition systems, and handwriting analysis and fingerprints impression should be made readily available and immediate response be given to individual cases. Traces of DNA from blood, hair, skin, saliva, semen, teeth bite can be quickly obtained to aid corroborative evidence.
• The length of trial of rape cases should be abridged so that the victims will still be able to recount the assault experience with very slight or no variation while giving evidence.
• There must be procedural tests carried out to diagnose infections that may have been contracted. Apart from quickly resolving any life-threatening infection, it may also lend credible evidence to pointing out the perpetrators.
• The identity of rape victims, if they so wish, should be shrouded in secrecy through giving recorded evidence or taking evidence away from the open court. This reduces incidences of social stigma.
• Educational institutions should have appropriate sanitary facilities. There have been instances where persons were brutally sexually assaulted while trying to answer the call of nature in bushes or deserted areas.
• My personal piece of advice is for victims to resist, fight, tooth and nail; scream to call for help against sex offenders especially when excessive violence cannot be used on them due to proximity to people or in situations that are not life-threatening.
• Local rape crisis centers should be established to provide necessary first aid, help and psychological relief to victims of rape and properly advise them on possible and appropriate action to be taken.
• Enlightenment campaign to discourage sex offences, letting people understand when they are being sexually assaulted. Myths such as having sex with a child or virgin to cure diseases should be made known to people as false.
• Victim blaming for being the reason why they were raped should be jettisoned. Such ideas as dressing provocatively or flirtatious acts as reasons why victims were raped should be frowned upon. Victim should not be blamed for an offender’s weakness

Conclusively, this article has been written in a bid to put into proper perspective what rape entails in Nigeria, new developments that should be incorporated into our laws and ways through which the menace can be curbed in our society.

It is the author’s wish that in the near future, incidences of rape should be at a minimum or non-existent.

 

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‘Deji Olunlade is a legal practitioner, a graduate of the University of Lagos and experienced in full time dispute resolution mechanisms with an uncanny ability of proffering simple solutions to complex legal issues. He is passionate about using the instrumentality of law to advance sound social, political and economic/business discourse.

Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.