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 especially laws on Rape and Marital Rape.

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.

Laws Regulating Rape in Nigeria

1. The 1999 Constitution
2. The Criminal Code
3. The Penal Code
4. The Violence Against Persons Prohibition Act
5. The Sexual Offences Bill
6. The Protection Against Domestic Violence Law (2007) (Lagos State) etc.

The 1999 Constitution

The Constitution made no express provision for Rape or Marital but instead Section 34 of the 1999 Constitution provides that;

“Every individual is entitled to respect for the dignity of his person”

By this section, Rape in no way shows respect for dignity of a person as it is an offence against the dignity of an individual.

The Criminal Code

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.

The Criminal Code, made no provision for Marital Rape therefore, according to section 36 (12) of the 1999 Constitution it is not illegal.

The Penal Code

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-

• 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 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;
• With or without her consent, when she is under fourteen years of age or of unsound mind.

Unlike the Criminal Code that was silent on Marital Rape, the Penal Code expressly states that the offence of Rape cannot occur between a husband and his wife.

Read more on The Offence of Rape and its Prosecution in Nigeria

The Violence Against Persons (Prohibition) Act (VAPPA)

Section 258 of the Violence Against Persons (Prohibition) Act (VAPPA) of 2015 provides thus;

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”.

The VAPPA even though praised as progressive with its gender neutral definition of Rape, is unfortunately silent as to Marital Rape in Nigeria although Section 19 of the VAPPA provides for Spousal Battery.

The Sexual Offences Bill

This Bill is similar to the VAPPA in that its definition of Rape contained under Section 1 of The Sexual Offences Bill is also gender neural but just like the VAPPA, it is silent on Marital Rape.

A Ray of Hope in the Protection Against Domestic Violence Law (2007), Lagos State

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.”
Section 18 of the Protection Against Domestic Violence Law (2007) 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.”

Hopefully other states will adopt this Protection Against Domestic Violence Law that Lagos state has enacted.

Future Application

What would be of interest to all is how the courts will utilize the law and whether other states will follow suit in unsettling the barbarism and misapprehension that a wife gives an irrevocable consent to sexual intercourse once she enters into a marriage contract.

Conclusion

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.

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