- Rape is a universally recognized crime against humanity. This is because it is a crime that is committed against a person which in turn affects their view of the opposite sex, sexuality and life in general. Rape is commonly referred to as unlawful sexual intercourse committed by a man with a woman not his wife and against her will. But as can be noted, this definition is too restrictive on the basis of gender, consent and what constitutes the crime of rape.
This article seeks to examine the laws on rape, punishment, factors that can be considered in sentencing on a conviction for rape and what should be done when a person has been raped.
The offence of rape and its punishment are found under the criminal laws of Nigeria mainly the Criminal(Southern) and Penal(Northern) Codes. Each state is then meant to domesticate these laws. Our focus here will be the Criminal Laws of Lagos State. In addition to these, is the Child Right Act promulgated for the protection of children and young persons and very recently the Violence Against Persons (Prohibition) Act applicable only in the Federal Capital Territory Abuja.
What constitutes the offence of rape? The traditional criminal laws (Criminal and Penal Codes and the various state versions) define rape as:
1. Unlawful carnal knowledge
2. Committed by a man on a woman
3. Without her consent or forcefully or fraudulently obtained consent or misrepresenting to be her husband.
4. Complete upon penetration.
Violence Against Persons (Prohibition) Act 2015(VAPPA).
This law applicable only in Abuja is a breath of fresh air. It accommodates the changing nature of perverted and modern forms of unnatural intercourse. For one thing, it expands the definition of rape to include any person (male or female) as offenders, also widen intercourse to include oral and anal sex and any other form of intercourse.
Child Right Act 2003. This law promulgated for the protection of the Nigerian Child also expands the scope of the offence of rape. Under this law (already ratified by two-thirds of states in the country), the crime of rape accommodates both male and female offenders and on any child(male and female. Consent is also not a defence hence making liability for the crime very strict to protect innocent minors.
Under the Criminal Code, the VAPP and Child Right Act, the punishment for rape is life imprisonment but the under the Penal Code it is a maximum of 14years imprisonment.
Attempted rape under the Criminal Code is 14years imprisonment. Gross Indecency under the Penal Code is punishable with 7years imprisonment.
Under the Criminal Code, a male under 12 is incapable of rape. He can only be charged for indecent assault. However, VAPPA states that offenders less than 14years can be sentenced to a maximum of 14years imprisonment.
VAPPA provides specific punishment for gang-rapist. It is a minimum of 20years without an option of fine.
VAPPA also stipulates punishment for any person who exposes their body parts indecently and who sends indecent pictures to another for the purpose of inducing them to have unlawful sexual intercourse. The punishment is imprisonment of not less than 1year or a fine not exceeding #500,000.00(Five Hundred Thousand Naira). This provision is becomes very pertinent in the face of increasing cyber indecency and social media abuse.
Rape in Marriage.
The general law is that a man cannot rape his wife and vice versa. The Criminal Law of Lagos State specifically states that intercourse between a man and his wife cannot be unlawful. Hence, a man cannot in the eye of the law rape his wife.
What then is the fate of a woman whose husband forcefully and violently has sexual intercourse with her? Proof of physical assault or sexual intercourse occassioned by violence is a ground for applying for separation or divorce.
Factors to be considered for conviction.
Below are some factors the courts will consider in determining the appropriate punishment on conviction;
1. Age of the offender,
2. Being a first offender or not,
3. Pleading guilty to the charge,
The first three mentioned above may all sustain a plea in mitigation of sentences, i.e. reduce the severity of the punishment but
4. The fact of previous conviction
5. The prevalence of the offence
6. The seriousness of the offence,
7. The non repentant attitude of the offender,
8. The complexity of the offender’s plan to commit the crime and
9. The adverse effect of the offence on the victim
are factors that can aggravate sentence.
We have seen so far that Nigerian laws needs to make a departure from the traditional concepts of rape to accommodate the changing nature of this societal menace. The VAPPA which is a more modern and progressive law is only applicable in Abuja.
It is pertinent to note that it is only a fraction of rape cases that are reported. Many victims are too scared to open up as sadly, most perpetrators are persons very well known to them. There’s also the fear of being stigmatized as being victims of rape. The point though is that the culture of silence does not help anyone. Rather it shields the rapist and emboldens him/her to simply look for the next victim. What then should be done of one is faced with the danger of being raped?
1. It’s ok to scream! The last thing a rapist wants is to be caught. Hence, drop all sophistications and scream! They will more often stop and run away.
2. It’s ok to defend yourself. Although it may appear difficult, putting in some defence maybe the critical element needed to buy time before help comes.
3. In the unfortunate event of a rape, do not keep quiet. As with most crimes, there’s the ‘golden hour rule’ i.e. the first hour being the most critical to gather sufficient evidence, track down a criminal and get adequate medical care. So, contact the police, the state designated rape assistance unit, the several organizations and private support centres.
While we await more progressive laws to combat this crime, each and everyone has a role to play in combating this societal menace. We must also learn to give support to victims and stop the stigmatization.