The Offence Rape and its Prosecution in Nigeria

Dearest Reader,

Before I begin, may I quickly point out that this article is a simplified evaluation of the concept of Rape and the processes involved in its prosecution. I am quick to make this point – and have given it such a distinct position in the write-up – because again and again we (as Legal Professionals) get called up to salvage a client’s case from near-death. And this is because many people read up articles (like this one) on the internet, adopt them as the way forward, and go on to implement them in the resolution of real life matters – without first consulting with a Lawyer! This practice is known as ‘self-medication’ in medical parlance, and we all know how ‘self-medicators’ often end up with more problems than they started out with.

This write-up (like every other of streetlawyernaija’s publications) therefore, is meant to simplify, demystify, expand upon, and unravel a particular legal concept (in this case, the offence of Rape and its prosecution) in a way that would be easily grasped and comprehended by every member of society – especially those without formal legal training. It does not constitute legal advice, and should be seen as a substitute to Legal consultation. 

Now that we have taken care of this little business, let the party begin.  

  1. RAPE DEFINED

Rape is arguably the most offensive kind of sexual assault known to man. It occupies this top spot amongst sexual assaults because it is not only an attack on the victim’s body while it lasts, but like the stench of decomposed fish in a vehicle that lingers on even after evacuation, leaves the victim traumatized and rudely shaken for a very long time. As a matter of fact, a good number of rape victims do not regain mental and psychological stability until their abusers are prosecuted and eventually convicted.

In Nigeria, the offence of Rape is defined, established and governed by the category of laws listed out below:

  1. The Criminal Code – applicable in all the Southern States
  2. The Penal Code – applicable in all the northern States
  3. The Administration of Criminal Justice Law – applicable only in Lagos State, and
  4. The Violence against Persons Prohibition Act (VAPP ACT) – this is a Federal law but it has only been domesticated in Lagos, Anambra, Ebonyi and Oyo States and is as such only enforceable in these states.

1.1   Rape is defined in section 357 of the Criminal Code as follows:

“Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if such consent is obtained by force, or by means of threat 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 called Rape”. (Emphasis mine)

The Criminal Code went on to define unlawful carnal knowledge ‘as carnal connection which takes place otherwise than between husband and wife’.    

1.2   Rape is defined in section 282 of the Penal Code as follows:

  1. A man is said to commit Rape who … has sexual intercourse with a woman in any of the following circumstances-
  1. Against her will;
  2. Without her consent
  3. With her consent, when her consent has been obtained by putting her in fear of death or hurt;
  4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
  5. With or without her consent, when she is under fourteen years of age or of unsound mind.

1.3   Rape is defined in section 258 of the Administration of Criminal Justice Law as follows:

“Any man who has unlawful sexual intercourse with a woman or girl without her consent, is guilty of the offence of Rape”

1.4   Rape is defined in section 258 of the Violence against Persons Prohibition Act as follows:

“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 if the consent is obtained by force”.

  1.     ELEMENTS OF RAPE 

It is a well-established principle of law that offences consist of two sorts of elements;

– physical elements (otherwise known as ‘Guilty Act’ or ‘Actus Reus’) and 

– mental elements (otherwise known as ‘Guilty Mind’ or ‘Mens Rea’). 

An offence is said to be complete when the various physical and mental elements that constitute the offence are present in the acts or omissions presented to the court. This is of optimum importance and needs to be understood by everyone (non-lawyers in particular) because a person can only be found guilty of an offence when it has been shown that in the act (or omissions) he/she committed, the various elements of the alleged offence are present and complete.    

For an accused to be convicted for the Offence of Rape, the following elements have to be proven;

2.1   That there was Penetration

This is a very important element that must be proved for the offence to be complete, and it is the major distinguishing factor between Rape and other sexual offences.

As has been held in a plethora of decided cases, there cannot be rape without penetration.

The element of penetration is captured by the provisions of the applicable laws in a number of ways.

The Criminal Code, for example, has this to say about ‘Carnal knowledge’ in it’s section 6;

“When the term ‘Carnal Knowledge’ is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration”.

It should be noted however that from the wordings of the definition of Rape (under the Criminal Code, Penal Code and Administration of Criminal Justice Law), only a woman or girl can be raped. The language of the aforementioned laws also gives rise to the conclusion that;

  1. Penetration can only be performed using a Penis, and 
  2. Penetration can only be complete when same is conducted on a Vagina.

These are some of the short comings of the laws that have over the years provided loopholes through which several persons accused of Rape have escaped conviction and liability. 

Thankfully, the Violence against Persons Prohibition Act (which is the most recent of the four enactments), is worded more liberally and expands the variety of actions that constitute penetration. It does this by expressly including the ‘mouth and anus‘ to the list of body parts in which the act of penetration can be performed, and also states that penetration may be performed by using ‘any other part of his/her body or anything else‘. 

Unfortunately, the Violence Against Persons Prohibition Act is yet to be domesticated by majority of the states. 

2.2   That he/she had the requisite capacity to commit Rape. 

The word ‘Capacity’ as used here is applied in a different context from the regular usage of the word.  

Capacity, in legal parlance, is a special class of ability, power, qualification or competence accorded to a person under a particular law. A number of laws expressly stipulate and enumerate the category of persons who have the capacity to carry out some actions.  

In the instant matter, a particular category of persons are presumed to be incapable of committing the offence of Rape.

As a result of the definition of Rape by the Criminal Code, Penal Code and the Administration of Criminal Justice Law, these persons include:

  • a male person under the age of 12,
  • a husband, in relation to acts carried out upon his lawfully wedded wife, 
  • a woman, in relations to acts carried out upon a man, and
  • a person of unsound mind.

In every case where the law has presumed a person incapable of committing Rape however, he/she may be charged with a related sexual offence in the event that he/she the commits the set of actions that ordinarily would have amounted to Rape. Thus a husband who forcefully and brutally has carnal knowledge of his wife may be charged and convicted of ‘Assault’ or ‘Wounding’; a male person under the age of 12 may be charged and convicted for ‘Indecent assault’; and a woman may be charged and convicted for ‘aiding, counseling or procuring the commission of Rape’.

Once more, the provisions of the Violence against Persons Prohibition Act , are more expansive and effectively include women as having the capacity  to commit Rape. 

2.3   That Consent was not given

For a charge of Rape to succeed the Prosecution has to be prove that the victim did not consent to the act(s).

Consent obtained by force or by means of threats or intimidation or fear of harm, does not amount to valid consent.

It has been decided in several cases that to have carnal knowledge of a sleeping woman could amount to rape, especially when it can be shown that the woman was neither the lawfully wedded wife of the accused, nor consented to having carnal knowledge with the accused (expressly or impliedly) before she slept! Same argument may also be applied to having carnal knowledge of a drunken woman.

Provocative dressing on the part of the victim does not also constitute consent – except in the very rare cases where it can be proved that it amounted to implied consent.

The mental element of Rape is the intention to have sexual intercourse without the woman’s consent or with indifference as to whether she consented or not. Once it can be shown that the victim did not give consent, or if she did, did so under duress, then the element of ‘absence/lack of consent’ can be established.

3.0   ATTEMPT TO COMMIT RAPE 

Commonly known as ‘Attempted Rape’, it is an offence to Attempt to commit Rape.

Simply put, where the other elements of Rape are present – with the exception of penetration, the accused may be convicted of Attempted Rape.

The Criminal Code in its section 359 provides that 

“Any person who attempts to commit the offence of Rape is guilty of a felony and is liable to imprisonment for 14 years with or without whipping”.

4.0   PUNISHMENT FOR THE OFFENCE OF RAPE

The offence of Rape is punishable by imprisonment for life, with or without whipping!

5.0   PROSECUTION OF RAPE IN NIGERIA

The prosecution of Rape involves a number of stages which would be discussed forthwith;

5.1 Report to the Police.

 In the event that anyone gets raped, the very first action such a person should take is to report at the Police station and lodge a complaint. 

Because of the challenges involved in capturing and preserving evidence in Rape cases, victims of Rape are advised to – as much as possible- not tamper with anything after the incident; they should not change clothes, they should not wash up or shower after the incident, and they should not remove anything from the scene of the crime, because doing so may negatively affect the evidence that the Police may need to prosecute the accused.

It is usually the duty of the Police to take the victim to a hospital for medical examination, and said examination should preferably be carried out on the same day the incident occurred.

The Police would also take steps at preserving the visible evidence by taking photos of struggle marks on the body of the accused (if any), taking pictures of his/her clothes (if torn), visiting the crime scene and interrogating witnesses, etc.

In the unlikely event where the victim is unable to gain access to the Police, he/she should immediately consult a lawyer for assistance and further directives.

5.2 Submit Yourself for Medical Examination (as soon as possible) 

In the instance where the victim is unable to access the Police, he/she should be taken to a government-owned medical facility for medical examination. 

This is because a Doctor’s Report could be essential evidence in the establishment of a case of Rape, especially when there is difficulty in getting eyewitnesses and where the accused does not admit to the offence.

5.3 Investigation by the Police

Upon receiving a complaint/report on Rape, the Police would typically kick into action and begin a series of activities ranging from taking pictures of the victim, to taking his/her statements, to escorting him/her to a medical facility for examination, to visiting the crime scene for evaluation, and interrogating witnesses. At some point, the accused would be invited for questioning (if his/her whereabouts are known). The accused would typically be detained at the Police Station (for the brief period provided by the Law) during the course of the investigation, and after which, shall be charged to Court.

5.4 Prosecution in the Court of Law

The matter may first be instituted at the Magistrate Court in order for the accused to take his/her plea, and for the matter to be handed over to the jurisdiction of the Court. The Court with the requisite jurisdiction to prosecute Rape offences however is the State High Court.

When the matter is eventually instituted, the victim (who now becomes the ‘Complainant’) shall be legally represented by a State Counsel and shall be required to give evidence/testify together with his/her witnesses. After each testimony the witness shall be cross examined by the Defence Counsel, and the cycle is repeated when the Prosecution is done with its case and the Defence begins theirs.

After both parties have closed their cases and addressed the Court (via their Closing Addresses), the matter would be adjourned to a later date when Judgment would be given on the matter.

5.5 Time Limit for Institution of Rape Matters (Statute of Limitation).

May I at this juncture point out that although the provisions of the Law as regards limitation period for the Institution of a matter on Rape is not clearly defined under the extant laws, a rape victim would have better chances of getting justice if such a matter is instituted within the shortest possible time after the incident occurred.

This is because apart from the issue of the legally stipulated time limit for the institution of a Rape matter in Court, a couple of other hindrances may militate against a successful trial. These include; 

  1. Death of Material witnesses – this would hugely water down the strength of the victim’s case, and
  2. Lapse of time – resulting in the loss of evidence and the reduction in the precision and accuracy if a witness’s testimony.

6.0 CONCLUSION

So many factors are responsible for the commission and perpetuation of Rape in our society, alas it is impossible to exhaust the list. But a lot could be done to stem the tide. 

Some of the major points that should be considered include; sensitizing communities to stop being negative and judgmental towards victims of Rape, creating awareness amongst the most vulnerable members of the communities (women and young girls) on the need to speak out in the event they (or someone close to them) get(s) raped, improving the efficiency of our Police Force and weeding out the insensitive ones amongst them, improving on the efficacy, transparency and speed of our justice system, curbing drug abuse and unemployment amongst the youth to the barest minimum.

We should also holistically review our body of Criminal Laws with a view to updating and bringing them up to terms with the changing times. 


Chisom A. C. Okeke Esq. lives and works in Awka, Anambra State, Nigeria.

You can contact him by sending a mail to: gaustineokeke.com

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