It is no secret that under Nigerian Law a Husband CANNOT be accused of RAPING his wife , the criminal code and penal code excludes and excuses married couples from the crime of rape.
The Nigerian Criminal Code in Section 357 states 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.
Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration. In other words, marital rape is not an offence in Nigeria. A husband cannot rape his wife. It is assumed that the wife gives implied general consent to sexual intercourse with her husband upon entering the marriage contract.” In his book, History of the Pleas of the Crown (1736), Sir Matthew Hale wrote, “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”
In the Penal Code, Section 281(1) provides that: “A man is said to commit rape who… has sexual intercourse with a woman in any of the following circumstances – (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) 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; (e) with or without her consent, when she is under fourteen years of age or of unsound mind.
Similarly, under the Penal Code, there is no offence of marital rape, provided the wife has attained the age of puberty.
There have been various criticisms of the Criminal and Penal Code majorly on three (3) grounds;
(a) the offence of rape is gender specific,only men can commit the offence of rape.
(b) the act amounting to rape is limited to penile penetration of the vagina – anal or oral sex or penetration using objects or other parts of the body such as the tongue or finger, do not constitute sexual intercourse for the offence of rape; and
(c) marital rape – both codes provide (with certain exceptions) that sexual intercourse between a husband and wife cannot constitute the offence of rape.
In other words ,it is settled that by virtue of a woman consenting to lawful marriage ,she has consented to sexual intercourse by her lawful wedded Husband(I said lawful wedded please),however the country's legal system fail woefully to see the danger in this lacuna(loopholes).
Married women do get raped every day and it is pitiable that Nigerian lawmakers have turned blind eye to this Truth! Little wonder an attempt to criminalize Marital Rape in Nigeria in 2013 via the SEXUAL OFFENCE ACT was never assented to by the then President and the National Assembly never thought of pushing same after Mr President withheld his consent. The bill expanded the definition of rape to cover both genders; in other words, under the bill a woman is capable of committing the offence of rape. It also provided for a sexual assault offence for non-genital penetration, i.e., penetration with mechanical objects or other parts of the body like the finger or tongue. There was some controversy surrounding the bill particularly over the age of sexual consent. The provisions in section 7 of the bill were misinterpreted as reducing the age of sexual consent to age 11 and the entire bill was resisted. This may have informed the President’s reluctance to give his assent and sign it into law.
The VIOLENCE AGAINST PERSONS(PROHIBITION) ACT 2015,which is only applicable in Abuja only recognises the fact that RAPE can be committed by both genders but didn't address the issue of MARITAL RAPE. In other words a woman can commit the offence of rape .
Neither the Sexual Offences Bill nor VAPPA 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.
It is obvious that the so called loopholes in our SEXUAL OFFENCE LAWS are obviously very intentional and not just an oversight.
It should be noted that under our laws a husband can be liable of raping his wife IF both of them are not in amity.When however they are in amity ,a husband depending on the circumstances can be charged for assault on his wife despite penetration and funny enough not the offence of rape against his wife !
However though,
Married women do get raped in their matrimonial homes and the rape laws in Nigeria must take cognisance of that fact !
to be continued.......
Umoru Theophilus Iko-Ojo Esq is a Lagos based legal practitioner .
phylumoru@yahoo.com
No comments:
Post a Comment