|(A mix of law and emotions)|
Rape is a canker worm that has eaten deep into the fabrics of the society. It is a deep pity that rape is fast becoming the new normal in the human society; the life of the boy, girl child and even adults are increasingly becoming unsafe in the society at large. The human race is fast diving towards extinction and I sincerely hope in years to come, human beings would not fully degenerate into human beasts. As the rape venom unfurls rapidly, I sincerely hope that there would not come a time where human beings will be talked about or alluded to in awe just like the dinosaurs.
THE LEGAL DEFINITION OF RAPE
The offence has been succinctly defined and made punishable under different governing laws in Nigeria. They include;
The Criminal Code – applicable in all the Southern States.
The Penal Code – applicable in all the Northern States.
The Criminal Laws of Lagos state – applicable only in Lagos State.
The Violence Against Persons Prohibition Act (VAPP Act)– This however is a federal law that has only been domesticated in Lagos, Anambra, Ebonyi and Oyo State.
According to Section 357 & 358 Criminal Code, Rape has been 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, is guilty of an offence which is called rape.”
Section 358 provides for the punishment of the offence which is imprisonment for life, with or without caning.
Under the Penal Code, Section 282 defines Rape as: “A man is said to commit rape who has sexual intercourse with a woman in any of the following circumstance: against her will; without her consent; with her consent, when the consent is obtained by putting her in fear of death or of hurt.”In the same vein, the Criminal Laws of Lagos State succinctly states that:“Any man who has unlawful sexual intercourse with a woman or girl without her consent, is guilty of the offence of rape”
Additionally, the Violence Against Persons Prohibition Act under Section 1 defines Rape as; “A person commits the offence of rape if he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his/her body or anything else without consent, or the consent is obtained by force”
One major thing that we need to bear in mind is that from all the definitions laid down by the aforementioned governing laws of our Nation; Nigeria, it is evident that any non-consensual penetration of the vagina is RAPE. It clearly showcases that CONSENT, CAPACITY AND UNLAWFUL CARNAL KNOWLEDGE are predominant factors when it comes to sexual intercourse. #NO MEANS NO.
The Violence Against Persons Prohibition Act (VAPP) appears more expansive and inclusive I.e includes all gender, both male and female and equally provides adequate punishment for criminals but the sad part is that the Act has not been domesticated by many states in Nigeria.
We should also bear in mind that there are certain categories of people that are incapable of giving consent; “the underaged“. It would interest you to know that there is no specific provision for the age of consent in the 1999 Constitution of the Federal Republic of Nigeria. However Section 29(4) defines full age as the age of 18 years and above. It also went further to state that any woman who is married will be deemed to be of full age. This might however be a ground to permit child marriage.
I know there are lots of misinformation going on about the consent age in Nigeria which is majorly due to the fact that the constitution is actually silent about that.
However, if you try surfing the net in a bid to find answers to what the consent age is pegged at, you are most likely to discover that consent age is pegged at 11 by some “scholars and authors” which is totally incorrect. I have seen a couple of posts and articles propagating the consent age to be 11 which I believe based on my research was actually misinformed by the Sexual offences Bill passed in 2015 and some other factors.
In my article on Child Marriage written as my University Project, I referred to the case of Senator Yerima who married a minor (a 13 year old girl) which I believe hurriedly ushered in the Sexual Offences Bill of 2015.
Section 7 which is the punishment section for defilement listed out the punishments for the offences of defilement sub-sectionally.
Section 7(2) merely talked about the punishment for defiling an 11year old child and less while other parts of section 7 up to sub section 5 listed out the punishment for other ages up to 18years! Section 7 of the Sexual Offences Bill of 2015 provides that:
1) A person who commits an act which causes penetration with a child is guilty of an offence called defilement.
2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for life.
4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for life.
The above outrightly means that in truth, Section 7 of the Sexual Offences Bill even though it was never promulgated prohibited sexual intercourse with anyone from age 0-18 years. That impliedly leaves the consent age to 18.
Even the provisions of the Child Rights Act in Section 31 was the most explicit where it stipulates the minimum age for marriage to be 18 which has only been adopted by 24 Nigerian States. The Marriage Act and Matrimonial Causes Act which are statutes governing statutory marriages in Nigeria are both silent on what marriageable age is. However, it has been argued that marriageable age is what is specified by Section 21 of Child Rights Act, which is 18 years.
The time has come for our legislators to make uniformed laws that would govern the nation as a whole; to be more specific about the age of consent for sexual intercourse and to also review the punishment meted out.
RAPE: A DEADLY CANKER WORM
It is no gainsaying that the offence of rape and sexual assault has been at the forefront of crimes against human dignity. Everybody has the right as entrenched in Section 34 of the 1999 Constitution of the Federal Republic of Nigeria to the dignity of their person. Section 34 states:
“Every individual is entitled to respect for the dignity of his person, and
accordingly. no person shall be subject to torture or to inhuman or degrading treatment;…”
Rape is considered an inhuman and degrading treatment which leaves the victim or survivor broken or dead in most cases. It is a condemnable act that should never be condoned in a sane society.
Nobody is entitled to make any body feel less of themselves. We all have the right to make our own informed or uninformed decisions and nobody has the legal right to force or pressure anyone into making decisions contrary to their will.
When it comes to sexual intercourse, everybody inclusive of the male gender possess the legal right to their body and they also reserve all the right to say YES OR NO when it comes to sexual contacts. It is high time we all started respecting the wishes of our sexual partners.
On a charge of rape, absence of consent is very important and the prosecution has to prove that the accused had carnal knowledge of a woman or girl and the age of the victim in this circumstance is immaterial so far it is done without her consent. It is no excuse that the complainant is a prostitute or that she had previously consented to sexual intercourse with the accused person. Rape is Rape!
Consent obtained by force or by means of threats or intimidation or fear of harm is no consent at all. Consent given because of extreme tiredness after persistent struggle with the Rapist is still no consent.
It is high time we all embraced the fact that every girl child, every woman and even the boy child have an exclusive right to their body.
#NO MEANS NO
WHAT ABOUT OUR LAWS?
The execution of the governing laws is extremely low and somewhat depressing when it comes to the prosecution and conviction of these criminals. It is just so sickening to find out that the scale of reported rape cases weighs heavier than the convictions and prosecutions done by our law enforcement agencies and our courts.
We wake up daily to the appalling news of how our children, sisters and brothers are battered and raped, we wake up daily to rape apologists constantly giving excuses for rape and blaming the victim and survivor!
One important thing to note is the fact that anybody can be a victim of rape; people of different gender, religion, background get raped on a daily and what a girl child was wearing at the point of her rape is actually very irrelevant. There is no excuse for rape! A rapist rapes because he is a rapist and every other reason he tries to give are merely extraneous and consequently immaterial. Rape brings with it some attendant consequences such as unbearable pain, stigmatization, brokenness, loss of self esteem and lots more. Rape leaves a damaging impact on the mental health of the survivor/victim and the horrific memories are for a lifetime.
THE WAY OUT:
Legally speaking, rape is a crime and it should be treated as such. The standard of proof for the proof of any crime is “beyond reasonable doubt” which is substantive in nature and at such cannot be reduced below that for any crime but at least, something should be done about it’s harshness for the offence of rape. However, the “burden of proof” for conviction of rape which is always on the victim should as well be mitigated. The burden of proving penetration which is one of the predominant factors of rape should be reduced. It is too stringent and harsh and that is why we have few convictions on rape. The standard and burden of proof should be a bit relaxed and our laws should be better amended to ease this stringency.
Additionally, I also recommend that a special tribunal be established by law to handle rape cases, just like election tribunal, mobile courts for traffic offences
because of the growing number of rape cases in the country lately. In the same vein, a time limit should be given, like election cases, so the cases can be tried expeditiously like election matters.
We all have to increasingly raise awareness, advocate for justice so that our voices can be undoubtedly heard. When we advocate as one for a change, something will definitely happen! There will be a shift hopefully! To lend our voices to the voiceless, raise awareness and stop stigmatization, to seek justice for the oppressed and to teach our children the basic and valuable moral ethics. The only true hope for change is by going down the roots, the only hope for change is You and I. The reorientation of our children, our sons, our brothers!
It is high time we started training the boy child too. Waking them up as well in the middle of the night to teach them valuable and moral ethics. This antiquated mentality of only training and teaching the girl child basic life principles and ethics so that they can become good and better people for their husbands and society is overrated. Yes it is good to do that but nothing stops the training of the boy child too, teach them that they have no right to any woman’s body. It is high time we started teaching our girl and boy child basic norms that would make them good and better people.It is no longer a movement of teaching the girl child about morality but a movement of teaching the boy child that he has no right over any woman’s body.
Furthermore, we need to create an enabling environment so that our children/ survivors/ victims can feel safe in speaking their truth having an unshakable faith that the perpetrators will be brought to face the wrath of the law. It is high time we faded out stigmatization and victim blaming, they need to feel secure in the knowledge that justice will prevail!
AUTHORED BY: FUNMILAYO SEYILAMI LONGE, ESQ.