As human beings evolve and our societies change, our laws must keep up with the changes and define our interactions in the context of our new societies.
There are many areas of our laws in Nigeria that have not kept up with the times. And there are areas of modern Nigerian society that need the guiding hands of legislature or pronouncements from the courts.
The Nigerian Criminal Code in Section 357 defined Rape as,
“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.”
Section 6 of the Criminal Code (For the South) defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration.
From a legal perspective marital rape is not an offence in Nigeria. It is assumed that the wife gives implied consent to sexual intercourse with her husband upon entering the marriage contract. This assumed implied consent is revocable either by an order of a court or a separation agreement. It is thereby widely believed and accepted in Nigeria that a husband cannot be guilty of rape committed by himself upon his lawful wife, for by their matrimonial covenant, she has submitted herself to the husband and cannot retract.
Similarly under the Penal code (For the North), the offence of marital rape is not provided for. The two (2) Acts are liable to be criticised as none deemed it fit for the provision against marital rape.
Furthermore, neither the Sexual Offences Bill nor Violence Against Persons (Prohibition) Act (VAPPA) of 2015, which, unfortunately, applies only to Abuja addresses concerns about marital rape. However, Lagos State has a domestic violence law that takes sexual offences beyond unlawful “carnal knowledge” and, in my thinking, prepares the ground for future prosecution of marital rape in Lagos State. This Lagos State law [The Protection Against Domestic Violence Law (2007)] was enacted to “provide protection against domestic violence and for connected purposes.”
The law defines domestic violence as any of the following acts –
“physical abuse; sexual abuse exploitation including but not limited to rape, incest and sexual assault; starvation; emotional, verbal and psychological abuse…..”
The law goes further to define sexual abuse as,
“any conduct that abuses, humiliates, degrades, or otherwise violates the sexual integrity, or dignity of the victim.”
What would be of interest to all is how the courts will utilise the law and whether other states will follow suit in unsettling the barbarism and misapprehension that a wife gives an irrevocable consent to sexual intercourseonce she enters into a marriage contract.
It is worthy of note that some religious practices cannot be undermined as regards some spiritual provisions guiding the rights of a man over his wife, or a wife’s duty to her husband after lawful marriage contract. Many people don’t accept marital rape as an abuse in Nigeria because they erroneously believe that a woman’s husband owns her body and is entitled to it at any time he wants, even forcefully. Many women are being sexually abused by their husbands but they can’t speak out for fear of being judged by the society.
As at today under the Nigerian Criminal Law, a man may be charged with assault, depending on the circumstance he has sexual intercourse with his wife but cannot, be charged with the offence of raping his wife.
Written by Ibrahim, Ridhwan Olalekan