Preservation of Evidence for Rape and Domestic Violence (STER Information)

One of the most frequently asked questions we get at STER is “what do I do if I have been sexually abused?”. Thankfully, our team of experts have come up with a guide to help you. It is our hope that you do not find yourself in this situation, however, if you do, please follow this guide to preserving the evidence.

PROPER COLLECTION AND PRESERVATION OF EVIDENCE IN RAPE AND DOMESTIC VIOLENCE CASES

Nigeria operates a federal system of government with 36 states and the Federal Capital Territory, Abuja. As such, different regions will have their own laws on rape and domestic violence. Laws governing rape and domestic violence in Nigeria are as follows:

1. Criminal Code Act- Applicable only in the Southern states in Nigeria (except Lagos).
2. Penal Code Act- Applicable only in the Northern states of Nigeria.
3. Criminal Law of Lagos State- Applicable only in Lagos state.
4. Violence Against the Persons Prohibition Act- This Act was initially only applicable in Abuja (FCT). Presently, it is also applicable in the following states that have now passed their own versions of the Law namely- Oyo, Ogun, Osun, Ekiti, Edo, Anambra, Enugu, Ebonyi, Benue, Cross River, Kaduna, FCT, Bauchi, Adamawa and Plateau.
5. Child Rights Act- Applicable only in Imo, Enugu, Ebonyi, Anambra, Abia, Akwa Ibom, Rivers, Edo, Cross River, Bayelsa, Delta, Oyo, Osun, Ondo, Ogun, Lagos, Ekiti, Plateau, Niger, Nassarawa, Kwara, Kogi, Abuja (FCT), Benue and Taraba.
6. Protection Against Domestic Violence Law- Applicable only in Lagos state.

 

What is rape?

In Nigeria, rape is defined under Criminal Code (CC), Criminal Law of Lagos state (CLL), Penal Code (PC) and Violence Against the Person’s Prohibition (VAPP) Act as follows:

• The CC defines rape as having sexual intercourse with 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 or fraudulent misrepresentation as to the nature of the act, or, in the case of a married woman, by personating her husband.”
• The CLL defines rape as “unlawful sexual intercourse with a woman or girl without her consent”. It further states that a woman or girl does not consent if she submits “by reason of force, impersonation, threat or intimidation of any kind, fear of harm or false or fraudulent representation as to the nature of the act”. It specifies that sexual intercourse is complete upon the “slightest penetration of the vagina”.
• The PC defines rape as follows- “sexual intercourse with a woman against her will, without her consent, with her consent when her consent has been obtained by putting her in fear of death or hurt, with her consent when the man knows he is not her husband and her consent is given because she believes herself to be lawfully married to the man”.
• The VAPP Act provides that a person commits the act of rape if “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” without that person’s consent. In this case, the consent is not obtained if done so by “means of threat or intimidation of any kind or by fear of harm or by means of false or fraudulent representation as to the nature of the act or the use of any substance or additive capable of taking the away the will of such person or in the case of a married person by impersonating his or her spouse”.

 

What is domestic violence?

• PADVL categorizes domestic violence as any of the following acts committed within the confines of a domestic relationship- physical abuse, sexual abuse/exploitation (including but not limited to rape, incest, sexual assault), starvation, emotional/verbal/psychological abuse, economic abuse/exploitation, denial of basic education, intimidation, harassment, stalking, hazardous attack including acid both with offensive and poisonous substance, damage to property, entry into the complainant’s residence without consent where the parties do not share the same residence, any other controlling or abusive behaviour towards the complainant which may cause imminent harm to their safety, health and well-being; deprivation.
• The VAPP Act also makes provision for punishment of domestic violence offences such as abandonment of children/spouse/other dependants without a means of sustenance, forceful ejection from home, spousal battery, forced financial dependence/economic abuse, forced isolation/separation from family and friends.

 

Here domestic relationships are defined under PADVL as follows:

(i) they are married to each other; including marriage according to any law, custom or religion; 

 (ii) they live or lived together in a relationship in the nature of marriage, although they     are not, or were not, married to each other; or are not able to be married to each other; 

(iii)  they are the parents of a child or are persons who have or had parental responsibility for a child (whether or not at the same time); 

(iv)  they are family members related by consanguinity, affinity (by blood) or adoption 

(v)  they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or 

(vi)  they share or recently shared the same residence, including housemaids, domestic servants or staff, house-keepers or unpaid licenses.

 

Collection of Evidence of Rape

The proper aggregation of evidence – be it forensic or physical – in cases involving rape entails the gathering and documentation of all evidence related to the offence. 

The system of collection of such evidence exists in two major forms, Pathological/Medical Examination and Forensic Specimens Collection.

1. Pathological/Medical Specimens Collection – This relates to the clinical examination and documentation of the victim(s) by qualified physicians. It is mostly done by conducting a full-body physical examination or an isolated examination of a specific area of the body. 
2. Forensic specimen collection – This is an examination conducted on the victim with the aim of assisting in a possible criminal investigation that may/or not result in the filing of a criminal charge. This is needed in order to detect and collect all vital traces of evidence that could be on the victim and also within or around the scene of the offence. It is usually carried out by persons with specialized scientific knowledge, training and skills. Such evidence may include blood traces, hair and or skin fragments, teeth/nail marks, vaginal secretions and semen.

 These examinations serve the purpose of proving the offence and identifying that there was a perpetrator of the offence. In addition, it aids in the provision of adequate healthcare to the victims of such offences. 

However, despite the demand for attention to the situation, certain foundational issues must be dispensed with. The most important is the issue of consent. 

Consent

The importance of informed consent in medical and forensic examinations and evidence collection cannot be overemphasized. Simply put, informed consent is the express permission given by an individual needing to be examined, by the physician(s). Consent is granted after a detailed explanation is given about the aspect and extent of the examination, with emphasis placed on the possibility of the results being issued to the police and used in judicial proceedings. 

In Nigeria, Rule 19 of the Code of Medical Ethics in Nigeria, makes provision for consent for screening and other procedures; this goes further to show that evidence of rape cannot be taken without appropriate or adequate consent. Consent may be granted through a consent form made available to and completed by the individual needing the examination or their representative (e.g a parent/legal guardian in the case of a minor- an individual below the age of 18).

Preservation of Evidence of Rape

This is the storage and maintenance of all evidence/results of the examination conducted by medical professionals. This deals with adequate storage and proper documentation of records of examination results and other material evidence collected from the victim(s) of the offence. Evidence and records collected in the course of investigating a rape are expected to be treated with strict confidentiality (or sealed) and ought not to be released except with the permission of the authorities involved in the prosecution of the offence. Of course, the exception to the previously stated rule is that such can be tendered in evidence during the course of court proceedings even if consent is not obtained. Evidence such as specimens (semen or vaginal secretions) should also be adequately stored and kept in the custody of persons permitted by law to do so.

Proper storage of collected evidence helps in maintaining the originality of the evidence, thereby reducing the risk of damage. It provides for easy data analysis and in the larger scheme of things, it provides statistics that can help with research purposes later on.

It is important that all evidence of rape be preserved to ensure that prosecution of the offence can go forward. 

In the event of rape, victims are advised to:

* To refrain from taking a bath, brushing their teeth or cleaning up in any way.

* To not eat, drink or consume any substance- this is to make easy, the detection of substances or drugs used by the perpetrator(s) in the commitance of the crime.

* To not change the clothes worn during the offence unless absolutely necessary and if so, to carefully package in a clean bag and keep safely – this is to help preserve all cloth fibre, hair specimens or any other clue that may be of help and in some instance, the clothes may serve as evidence of a struggle between the victim and the perpetrator.

The above steps were laid down to avoid the risk of contamination or elimination of evidence by the victim and to help preserve all evidence.

Additionally, after these steps are observed, victims are advised to then make a report at the nearest police station or centres that are involved in these offences, such as STER, and then further, to a government hospital or sexual assault referral centre (SARC) for examination and easy access to other forms of healthcare service or assistance.

It is important to note that the specimens/evidence left on/in the body of the victim and their clothes, all have a lifespan ranging from 12 – 72 hours after the commission of the offence. However, it is still advisable to report to the nearest government hospital or SARC as soon as possible, preferably immediately after the offence has occurred as not observing the steps listed above may impede the success of the immediate attempt at the prosecution of the offence.

Other forms of evidence of the offence could be video evidence of the offence, chats or recordings where the perpetrator may have directly admitted/confessed to the offence (an apology where there is no admission of the offence, “let bygones be bygones” type statements by the perpetrator or the perpetrator merely admitting to “disvirgining” or “using” the victim will not work in this regard) and eyewitnesses who can also testify to the offence. 

Collection and Preservation of Evidence of Domestic Violence

In a case of domestic violence, victims are advised to document evidence of physical injuries as far as possible with dates when those injuries occurred. This could be through the use of pictures and/or medical reports from hospitals and will be useful for the prosecution of the offence.

Just as with rape, other forms of evidence of the offence could be video evidence of the offence, chats or recordings where the perpetrator may have directly admitted/confessed to committing the offence of e.g hitting the victim or forcefully ejecting them from their house (an apology where there is no admission of the offence or “let bygones be bygones” type statements by the perpetrator will not work in this regard), eyewitnesses who can also testify to any of the categories of domestic violence committed under PADVL or the VAPP Act. 

 

We hope this guide has been helpful. If you have more questions, please leave a comment or call or send up an email. Remember that STER is always available to help you.

 

Photocred: EVISCAN