by Orji Aka Uka
In the final analysis, the poser, can a man rape his wife has to be answered in the negative as far as Nigeria is concerned
In my days as a law student, it was always refreshing to watch with amazement how some of my colleagues, right from year one, had the ability to throw an obscuring curtain of legalisms about every simple legal issue presented to them for discussion. One area where this was most obvious was in the area of Criminal Law and one issue which generated so much logomachies which were never really resolved was the simple question could a man could rape his wife? It is this question that this work shall attempt to answer once and for all.
While discussing a previous topic, Wearing Military Uniforms by Civilians: Crime or mere wrong? [READ HERE] I had cause to offer an explanation of some requisite legal principles that run through the jurisprudence of common law countries including Nigeria. One of such principles is that which states that a person cannot be found guilty of a crime, except his mind is also guilty. In other words a person is guilty of a conduct only if he is guilty of both the physical and the mental elements of the offence.
I also mentioned that there are certain salient features which must be present before a person can be found guilty of an act or conduct, to wit: the offence must be created by the appropriate legislative authority and the offence must be created by a written statute which must set out sufficient ingredients (elements) including the penalty. It is thus only when it can be proved that a person has contravened the ingredients (both physical and mental) of an offence as defined by the relevant penal legislation that such a person can be found guilty of committing that offence.
In light of these, the question whether or not a man can be liable for the offence of rape against his wife therefore necessarily entails the consideration of the provisions of the Criminal Code Act Cap C17 Laws of the Federation of Nigeria (applicable as Laws of the various States in the Southern part of Nigeria except Lagos State where the Criminal Law of Lagos State, 2011 applies) and the Penal Code Act (applicable in the FCT, Abuja and also applicable as Laws of the various Northern States) to ascertain the physical and mental elements of the offence.
Rape is defined in Section 357 of the Criminal Code and by Section 358 of the Code; the offence is punishable with imprisonment for life with or without caning. Section 357 of the Criminal Code provides:
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. (Emphasis supplied)
From this definition, one phrase does not lend itself to easy understanding; unlawful carnal knowledge. Thankfully the Code in Section 6 defines unlawful carnal knowledge as, “…carnal connection which takes place otherwise than between husband and wife.” A corollary of the above therefore is that carnal connection between a husband and his wife cannot be unlawful suggesting therefore that a man cannot have unlawful carnal knowledge of his wife.
Let us turn to the Penal Code. Section 282 (1) of the Penal Code defines rape but Section 282 (2) provides:
(2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.
Intrinsic in the above provision is that, in the North, a man can only be guilty of the offence of rape against his wife if his wife has not attained the age of puberty (I shudder at the prospect of this still being part of our laws!).
Having seen what the statutes provide, let us exame how judicial authorities have fared in their attempt to resolve the question of whether a man can rape his wife?
In POSU & ANOR. VS. THE STATE (2011) 3 NWLR (Pt. 1234) 393 @ 414 para F the Supreme Court defined rape in the following words:
“Rape is an unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her will; the act of sexual intercourse committed by a man with a woman who is not his wife without her consent. See: The State vs. Lora 213 Kan. 184, 515 p.2d, 1086, 1093; Black’s Law Dictionary, sixth Edition at page 1260.”
In UPAHAR & ANOR VS. STATE (2011) 6 NWLR (Pt. 816) 230 @ 250 paras C-D the Court of Appeal held:
“To prove a charge of rape the prosecution must establish that the accused had sexual intercourse with the woman in question; that the act of sexual intercourse was done in circumstances falling under anyone of the five paragraphs in section 282 (1) of the Penal Code; that the woman was not the wife of the accused; or if she was his wife that she had attained puberty; and that there was penetration. Please See Ellison Ibo vs. Zaria Native Authority (1962) NNCN 30; Simon Okoyomon vs. The State (1973) NMLR 292 at 296.”
We can see from the above dicta that our courts have simply followed the literal provisions of the laws above to hold that one of the salient ingredients of the offence of rape is that the woman or girl that the man is accused of having unlawful carnal knowledge of is not his wife. And who can blame them?
The various penal legislations in Nigeria have their histories traceable to the colonial era. The Criminal Code Act was first established in 1916 at a time when the orientation and psyche of the community was totally different from what obtains today and since then no attempt has been made to review the law (except the feeble attempt by Lagos State that resulted in the Criminal Law of Lagos State, 2011 but which law is in fact not a total departure from the 1916 Act). Today, the world has changed so drastically that the current definition of rape under our laws are restrictive and are in dire need of revision. The society is ever changing and any law that intends to survive must constantly evolve with the times otherwise such law will atrophy and die while the rest of the society will move on, and move on the rest of the world has.
Forceful sexual intercourse by a married partner against the other, now known as marital or spousal rape was once widely condoned or ignored by law, but in a growing number of countries, it is now criminalized by domestic laws and repudiated by international conventions. Unfortunately, in Nigeria as well as several other countries, spousal rape either remains legal, or is illegal but widely tolerated and accepted as a husband’s prerogative.
In the England from where we borrowed most of our laws, rape was originally a common law offence and was simply defined as “the carnal knowledge of a woman forcibly and against her will. In the course of the development of English law, a statutory definition of “rape” was provided by Section 1 of the Sexual Offences (Amendment) Act 1976 as follows:
(1) a man commits rape if—
(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and…
Under the above law, the term unlawful sexual intercourse (which is also the term employed under the Nigerian Criminal Code) implied that marital rape was excluded, thus a man could not rape his wife.
This argument was however rejected in the case of In R vs. R[1991] UKHL 12. The facts of this case were that the Appellant was charged with the offence of attempted rape and of assault occasioning actual bodily harm. The victim was his wife but the marriage had developed difficulties to the extent that the woman consulted solicitors about matrimonial problems and subsequently moved out of the matrimonial home to stay with her parents. Before leaving, she left a letter for the Appellant that she intended to petition for divorce.
About 9 p.m. on 12 November 1989 the Appellant forced his way into the house of his wife’s parents, who were out at the time, and attempted to have sexual intercourse with her against her will. In the course of doing so he assaulted her by squeezing her neck with both hands. The Appellant was subsequently arrested and charged by the police.
Before the Leicester Crown Court, it was argued on behalf of the Appellant that considering the word, unlawful sexual intercourse employed by the Act, marital rape was excluded from the definition of rape. In other words, a man cannot be guilty of raping his wife. The Judge, Owen J. rejected this contention and the Appellant appealed to the Court of Appeal. The Court referred the sole question to the House of Lords whether a husband is criminally liable for raping his wife.
It turns out that in England the common law position used to be that “… a husband cannot by law be guilty of ravishing his wife, on account of the matrimonial consent which she cannot retract.” See East, in his Treatise of the Pleas of the Crown. Vol. 1 Ch. X, p. 446 in 1803. Earlier Sir Matthew Hale, in his History of the Pleas of the Crown (1736) vol. 1, ch. 58, p. 629 had also drawn a similar conclusion. The position remained so in English for over 150 years up till when this case was filed.
In fact, in time past, forced sex was considered a right of a husband such that it was not considered a form of abuse or a wrongdoing, and therefore it was not considered a ground for divorce for the wife. For example in a case where a Japanese woman filed for divorce on grounds that her husband compelled her through physical force to have sex with him, a Japanese Court in denying the woman’s request ruled:
“The marriage presupposes sexual union between both sexes. It is in no way illegal for a husband to demand sexual intercourse from a wife, nor does a wife have any rights to deny such a request. Because of the plaintiff’s [wife] complete refusal of a sexual relationship for no reason, the defendant [husband] became sexually frustrated, could not tolerate it, and forced sexual intercourse upon the plaintiff.(…) Although it involved a certain degree of violent acts, it is within the range of the degree of force used in fights among ordinary married couples, and thus, it does not warrant a special consideration [by court].”[56]
In the English case, the House of Lords considered all these and reasoned that it may well be that the proposition was generally regarded as an accurate statement of the common law of England but the common law is, however, capable of evolving in the light of changing social, economic and cultural developments. The Court held that Hale’s proposition reflected the state of affairs at the time it was enunciated but since then the status of women, and particularly of married women, has changed out of all recognition in various ways and so there is now no justification for the marital exception in rape.
To eliminate any further doubts, the law was further amended in 1994 by deleting the word ‘unlawful’ from the definition of rape. Section 1 of the Sexual Offences Act 1956 was substituted on the 3 November 1994 by section 142 of the Criminal Justice and Public Order Act 1994, providing a new and broader definition. This has been maintained by the latest piece of legislation on this subject in England, the Sexual Offences Act 2003
In the US, it was also not the norm to criminalize marital rape and it appears that this just started in the mid-1970s and culminated in North Carolina becoming the last state to make marital rape illegal in 1993. Several countries in Eastern Europe and Scandinavia however made marital rape illegal before 1970 while others followed suit much later.
In most other countries however, it is not clear if marital rape may or may not be prosecuted under ordinary rape laws such that in the absence of a specific spousal rape law, it is only possible to bring prosecution for acts of forced sexual intercourse inside marriage by prosecuting, through the use of other criminal offenses (such as assault based offenses), the acts of violence or criminal threat that were used to attain submission. This is the only course available in Nigeria.
In the final analysis, the poser, can a man rape his wife has to be answered in the negative as far as Nigeria is concerned. The absurdity of this situation which has the passive imprimatur of our legislators is better captured by the hypothetical situation that a man may well contract a sexually transmitted disease from one or several of his paramours and notwithstanding his wife’s remonstrance proceed to transmit the disease to his wife and still escape culpability of the offence of rape (although he may well be charged with another offence). If that doesn’t ring a bell, consider a situation where a man contracts Ebola and having reached an advanced stage where he can transmit it to another, insists on his right of consortium with his wife. Sorry, the law as it is today is that the man may well force his wife to have sexual intercourse with him and escape liability in rape.
What appears a scant consolation is that the court now considers the transmission of an STD by a husband as one of the proofs of the fact that a marriage has broken down irretrievably (which is the sole ground for dissolution of marriage). This unfortunately does not thereby render him liable for the offence of rape.
Under the present constitutional arrangement which we practice, we have a clear-cut principle, which is the supremacy of the legislature over all other sources of law. From that principle flows the obligation of the judiciary to faithfully enforce the written law of the land as enacted by the legislative – except in cases where such a literal interpretation will lead to absurdity – and to interpret that law in accordance with its plain meaning without reference to the personal desires of the Judges interpreting the laws, or their individual conceptions of justice. This principle has become a tacit premise underlying the whole of the legal and governmental order for which the Judges were appointed, sworn and empowered to administer. It is therefore the duty of the legislature to continually ensure that our laws are constantly fine-tuned to accord with changing times. One only hopes our legislators can one day wake up to this responsibility, and thus justify their jumbo pays.
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Orji Uka is a legal practitioner with one of the biggest law firms in Africa and has been in dispute resolution practice since his call to bar in 2012. Orji attended Abia State University, Uturu Nigeria where he obtained a 1st class LL.B (Hons) degree in 2010. He tweets from @Orjiuka
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.
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