By Aminat Lawal
Being on social media these past few days has begun to feel like someone threw me into a terrible horror movie but the person has refused to let me out. After reading all these stories, a person may begin to wonder what the legal redress these victims/survivors have if any. Thus, I have decided to carefully examine the current laws governing the offense of rape in Nigeria After going through them, I strongly believe you would be writing your own article about the need for new policies to govern this offense.
Honestly, I already knew most of these laws because I currently study law at university. I remember being so passionate when I took Rape under Criminal Law last year because I was baffled at how outdated they were. There are three major laws governing the offense of Rape in Nigeria. They are; Rape under the Criminal Code, Rape under the Penal Code and the Violence against Persons Prohibition Act, which will be referred to further in this article as the VAPPA. They each contain different laws and will be examined individually.
The Criminal Code contains the laws governing criminal activities in the Western, Southern and Eastern part of Nigeria. Section 357 of the Criminal Code provides for the offense of rape and it mainly states that the offense of rape can only be committed when a man has unlawful carnal knowledge of a woman without her consent or when her consent is obtained through threat or force. That is, a man can only commit rape when he forces a woman to have sexual intercourse with him without her consent. Lack of consent is essential to prove that rape has been committed.
The Penal Code is similar to the Criminal Code with the major difference being that it is only applicable to the Northern part of the country. It also says that rape can only be committed when a man has unlawful sexual intercourse with a woman without her consent or when the consent is obtained by threat or intimidation. Section 282 of the Penal code also adds that a man is guilty of rape if he has unlawful sexual intercourse with a girl under the age of fourteen years whether her consent was obtained or not. Neither of the two codes recognizes marital rape as a criminal offense. In addition, punishment is only prescribed for a man who impersonates a woman’s husband thereby tricking her into having sexual intercourse with him.
The VAPPA is the third major law governing the offense of rape in Nigeria. Think of the VAPPA as the act that compensates for the gaps in the Penal and Criminal Code. Section 1 of the Act provides that rape is committed when a person penetrates the vagina, anus or mouth of another person with any part of his/her body without the consent of the other person, where the consent is obtained by threat or fraud. In addition, the offense is also committed where a person gives the other person drugs to weaken the will of the other person. Unlike the criminal code and penal code, the VAPPA provides for compensation of the victims/survivors. It also states that victims/survivors should be provided with mental, social and psychological care and warns against victim/survivor being discriminated against or punished. It gives a minimum time for the punishment of offenders and does not give room for the payment of fine replacing punishment. It also recognizes joint offenders of rape and prescribes a punishment of twenty years for it.
Although not prescribing punishment for the offense of rape, the Administration of Criminal Justice Act otherwise known as the ACJA provides for improved methods in the trial for the offense of rape. It provides for the protection of the identities of the victims/survivors, specifies that certain people may be exempted from being present in court during proceedings and gives an avenue for the victims/survivors who are not willing to be physically present to send a written deposition or video evidence.
With the above, it is clear that although not being perfect, the VAPPA contains adequate provisions for the punishment of offenders of rape if it is effectively put to use. However, the major problem is that the offense of rape is under the jurisdiction of the state and they make laws that govern it. Therefore, the VAPPA will only be effective in Abuja and a few states in Nigeria that have domesticated it. None of these states are in the North. Unless it is domesticated by the other states in the federation, the implication is that the VAPPA act would remain just another law that acks implementation. However, some of the states that have domesticated the act have made changes that have reduced its effectiveness. A good example is Oyo State which adopted the VAPPA as the Violence Against Women Prohibition Act. Although all the commendable provisions that protected the victims/survivors are intact and it recognizes other forms of rape apart from vaginal sex, it still states that only women can be victims/survivors of rape.
This has frustratingly led to the better part of the country being helplessly susceptible to the archaic provisions contained in the Criminal Code and the Penal Code. Both laws continue to hold the view that only women can be victims/survivors of rape. Although it is safe to say that women are outstandingly the larger victims/survivors of rape, men cannot simply be unfairly ruled out of having a cause of action when they victims of rape. A study done in 2016 reported that one in seventeen men has been a victim/victim/survivor of sexual assault. Therefore, what good is a law that continues to exempt the other half of the population? For a man to be successful in a rape case in Nigeria, the act ought to have occurred in Abuja. Therefore, his fellow counterpart in Ekiti or Imo State will not have access to such redress if such unlawful act happens to them. This reason enough can stand as grounds for the need for new policies in Nigeria especially for the unification of the laws governing the offense of rape.
In addition, the Penal and Criminal Codes still hold the archaic view that rape is only committed through unwanted vaginal sex. The law has refused to change with the times and what good is a law that cannot stand at the same time and age with its people. There are other ways a person can be sexually assaulted and with several objects aside from a penis. This is a major problem for victims/survivors of rape who have nowhere to report their cases because they do not fall within the almost too strict confines of the law.
Another major problem with Nigeria’s rape laws is that they do not recognize marital rape. A woman is presumed to have consented to have sexual intercourse with a man as long as she is legally married to him and vice versa. It is immaterial that the consent is obtained by force or threat. So many married women fall victim to these situations and have no law in their own country to protect them against the assault they continue to face should they choose to take legal action.
It is exceedingly clear that the laws governing the offense of rape in Nigeria have not moved on with the times and they continue to be insufficient for the victims/survivors who are trying to seek redress for the awful crime done to them. I mean, rape has been defined by many as the most violent form of sexual assault so why then can the law not match the offense with the same level of punishment it clearly deserves. The VAPPA, if adopted in all states would go a long way in solving most of these inadequacies. However, what good is a good law if it only positively affects about 1 percent of the population?