As I walked into my compound, I saw Ehis sitting at the doorstep of his flat crying. Ehis was a little lad of about 7 years old. I moved closer to him and asked him what the problem was. After much cajoling, he spoke up. It turned out that there has been this lady who lives in the same compound with us who has been in the habit of assaulting this little lad. From the little I could gather from him, this lady has been assaulting Ehis in the most obscene ways and little Ehis could not speak up to anyone. I had to assure him that all will be well and that I would ensure that this act towards him is brought to an end.

Upon leaving him, I received a call from my best friend, she sounded so bitter. It turned out that her brother was assaulted by his lesson teacher. The lesson teacher was a homosexual and enjoyed having sex with little boys. This time he forcefully had sex with my friend’s brother through his anus and he had to be hospitalized as a result of the injuries gotten from this heinous act.

The above instances narrated above is not a rare occurrence in our society of today. While a lot of people will call these acts rape, the law does not recognize this as rape.

Rape Defined by Nigerian Laws

The law in Nigeria which regulates criminal offences is the Criminal Code and the Penal Code. While the Criminal Code regulates crime in the southern, eastern and western part of Nigeria, the Penal Code is the criminal law for the Northern part of Nigeria.

Criminal Code

The Criminal Code in Section 357 expressly provides that;

“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.”

Penal Code

The Penal Code in Section 282 provides that;

“A man is said to commit rape who, has sexual intercourse with a woman either against her will; without her consent; with her consent, when her consent has been obtained by putting her in fear of death or of 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.”

The definition of rape as stated above can be divided into two parts:

1. What constitutes rape.
2. Who can commit rape and against whom can it be committed?

What Constitutes the Offence of Rape in Nigeria?

Before the offence of rape can be validly proven, a person must prove that unlawful carnal knowledge has occurred. Unlawful Carnal knowledge was defined in Section 6 of the Criminal Code to mean carnal connection which takes place otherwise than between husband and wife. This definition explains why a husband cannot rape his wife and vice versa under Nigerian Law. Under the law any carnal connection (sexual intercourse) that takes place between man and wife is considered as lawful. Being lawful, it can’t fall within the definition of rape under the Criminal Code. Also, the penal code expressly provides that sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.

Both the Penal Code and the Criminal Code provides that carnal connection is complete upon penetration. Therefore, a penis must have gone into a vagina before a person is said to have had sexual intercourse with another. Where there was just romance and no penetration, rape would not have occurred. Note also that penetration is penetration, no matter how slight it is.

Who Can Commit Rape and Against Whom Can it be Committed?

This has always been the cause of controversy amongst many. Some are of the view that a woman can commit rape and also that a man can be raped. These scholars have stated that a boy/man can be raped basing their argument on the issue of penetration and arguing that the Code never stated that the penetration must have been initiated by a man and that were a woman has unlawful carnal knowledge (sex) with a man there must have been penetration and the condition for unlawful carnal knowledge is being satisfied. Others are strongly against this view and hold firmly that only a man can commit rape and a man cannot be raped.

The position of the law is however very clear on this point. According to the Criminal Code, the offence of rape can be committed by any person, but the offence can only be committed on a woman or a girl, it cannot be done to a man or a boy. The Penal Code on the other hand expressly states that rape can only be committed by a man on a woman. The offence of rape is actually a sexual offence intended to protect a woman.

The law on rape however seems to be obsolete and should be amended to include a man. Gone are the days where sexual pleasure was only derived when a man has intercourse with a woman. It can happen that a man would force himself on another man or on a little boy. Both the two codes make no provision on this point. The best remedy such a victim can get is to come under the provision of the law which states that any person who assaults another with intent to have carnal knowledge of him or her against the order of nature is guilty of a felony, and is liable to imprisonment for fourteen years and the provision that states that a male who has carnal knowledge of another male person against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years. This provision of the law is not sufficient for so many reasons, one is that the punishment for rape is life imprisonment as opposed to a mere 14 years in prison. No man would love the idea of being forced to have sex with his fellow man either by physical force or by being drugged or threatened, neither would any one love the idea that a man forced himself on his or her little brother or child.

Also, no matter how amusing the society may find it, a woman, for so many reasons, can also have unlawful carnal knowledge of a man/boy without his consent either by drugging him to make him sexually aroused and of no willpower or with physical force. As earlier stated, the code never stated that the penetration must have been initiated by a man. The law only states that there must have been a penetration. Thus, were a woman has unlawful carnal knowledge (sex) with a man there must have been penetration and the condition for unlawful carnal knowledge is being satisfied. Despite this fact, the law makes no provision for a remedy to this wrong. The law expressly stated that it must be done on a woman and does not include male of any kind whether a priest, a little boy or a monk. Such a boy or man can only come under the provision of the code which deals with assault of a man. The codes provide that any person who unlawfully and indecently deals with a boy under the age of fourteen years is guilty of a felony and is liable to imprisonment for seven years. The code further states that any person who unlawfully and indecently assaults any male person is guilty of a felony and is liable to imprisonment for three year.

The Violence Against Persons Prohibition Act

The creation of the Violence Against Persons Prohibition Act is seen as a progressive step in combating the gender biased nature of the Criminal Code, Penal Code and other laws limiting the act of committing the offence of rape to men and its victims to women. Read more here.

Conclusion

Based on the above, I am of the opinion that the law on rape should be amended to include instances where a woman has unlawful carnal knowledge of a man or boy or instances where a man has unlawful carnal knowledge of a man or boy. Justice would be well served if this is done.

Written by Ali-Udo Chinwe