MARITAL RAPE: THE CASE FOR ITS CRIMINALISATION IN NIGERIA
Abstract
Rape is almost as old as humanity if historical records are anything to go by, from narrations of its commission in war and pillages to its depiction in various mythologies. Almost every country on earth have laws against rape which usually carry severe penalties against those found guilty which shows the revulsion to which rape is regarded in human society. Unfortunately, one form of rape does not have the same level of revulsion accorded to most other forms of rape to the extent that many countries including Nigeria have not made this particular type of rape an offence, that being marital rape.
The objective of this paper is an in-depth examination of the concept of marital rape with a view to demonstrating the necessity for its criminalisation in Nigeria. The paper will provide a comprehensive definition of marital rape, give a historical account of the evolution of marital rape as an offence, highlight jurisdictions where it is an offence and jurisdictions where it isn’t, explain why it needs to be criminalised in Nigeria as well as offer recommendations to the process of criminalising marital rape.
Definition of Marital Rape
Marital rape can be defined as the act of having sexual intercourse with one’s spouse without the consent of the spouse or where the consent was acquired forcefully. As with other forms of rape, the major ingredient is the absence of consent or consent would have to have been acquired through force or violence or the threat of such.
According to the Black’s Law Dictionary[1], marital rape is defined as “a husband’s sexual intercourse with his wife by force or without her consent”, this definition is problematic for the simple reason that the definition implies that only the wife in a marriage can be raped, perhaps influenced by the old school of thought that men cannot be raped.
Modern laws have progressed beyond that notion and have embraced the fact that men can also be raped. A better definition of marital can be found in the California Penal Code[2], which defines marital rape as:
(a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
(1) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
(2) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.
(3) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
© Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraud in fact.
(4) Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(5) Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
This definition is more exhaustive by not only including the male gender as a possible victim but also covering sufficient ground on what scenarios amount to marital rape, including the use of threats and the ingredient of “reasonable belief”.
Legal History of Marital Rape
Many traditions and customs round the world did not (and still don’t) recognise marital rape as an offence, especially in cultures that viewed women as little more than property, thus by marriage her husband had unrestricted consent to sexual intercourse whenever he deemed fit. Cultures that practice the collection bride price or dowry for marriage suggest a transactional nature giving the husband proprietary rights over the wife including free access to sex.
Some of the earliest documented mentions of marital rape arose curiously through an affirmation of its exemption to the offence of rape, meaning that the idea of marital rape was mentioned as an exception to rape. According to Sir Matthew Vale in his book History of the Pleas of the Crown[3]:
The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
It wasn’t until the late 20th Century that the laws began to change to recognise rape by a spouse as criminal, partly as a result of feminist activism which promoted the idea of bodily autonomy of a woman whether married or not leading to changes in rape laws that criminalised marital rape. The first case to charge a man for marital rape was Oregon v Whiteout[4] where the accused forcefully engaged in sexual intercourse with his wife after they had a fight.
The case was made possible by a recent amendment to the Oregon Criminal Code that removed the “marital rape exemption” that existed in most rape laws at the time. The accused was eventually acquitted but the case drew national attention and brought to the fore the need for marital rape to be made criminal.
In 1984, the Court of Appeal held that marital rape exemption was unconstitutional in People v Liberta.[5] By 1993, all states had expunged marital rape exemptions from their rape laws, however there still exist loopholes or exceptions to the marital rape laws in some states in the USA, for instance in South Carolina where a spouse cannot be prosecuted unless force or threat of force was used.[6]
In the United Kingdom, the case or R v R[7] abolished marital exemption to rape with the House of Lords describing it as an anachronistic and offensive legal fiction. The United Nations criminalised marital rape in its Declaration on the Elimination of Violence Against Women (1993)[8] specifically in Article 2 of the resolution.
Other countries that criminalised marital rape include Canada (1983),[9] France in 1990 by a pronouncement by the Court of Cassation and subsequently by legislation,[10] and South Korea in 2013[11] to name a few.
Africa equally has not been left out as a number of countries have made marital rape a crime in their laws such as South Africa in 1993,[12] Zimbabwe in 2001,[13] Rwanda in 2009,[14] Sierra Leone in 2012[15] and Malawi in 2016.[16] In all about 14 African countries have made marital rape a crime.
Despite the trend of marital rape legislations across numerous countries, there are still many countries that have not criminalised marital rape such as China and Nigeria.
The Necessity of Criminalising Marital Rape in Nigeria
According to a document posted on unwomen.org[17], an estimated “…35% of women worldwide have experienced either physical and/or sexual intimate partner violence…” and “…women who have experienced physical or sexual intimate partner violence report higher rates of depression, having an abortion and acquiring HIV, compared to women who have not…” ‘Intimate partner” here would include a spouse.
This shows the negative effects that marital rape and other forms of domestic violence has on a large demographic of a society psychologically, emotionally and physically. It does not matter that the perpetrator and victim are married because they still suffer from the act of marital rape. As stated by Judge Sol Wachtler in People v Liberta:[18]
Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm. To ever imply consent to such an act is irrational and absurd.
A marriage license should not be viewed as a license for a husband to rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman.
The 1999 Constitution of the Federal Republic of Nigeria(as amended)[19] guarantees the right to dignity and therefore must not suffer inhuman or degrading treatment of which the act of rape inflicts and exempting rape in marriage goes against this provision of the Constitution making it null and void.
However, the laws on rape in Nigeria provide rape exemptions for married couples essentially nullifying marital rape as a crime in Nigeria. For instance S. 357 of the Criminal Code Act[20] defines 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.
While S. 6 of the same Act provides that:
When the term “carnal knowledge” or “carnal connection” is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration.
“unlawful carnal knowledge” means carnal connection which takes place otherwise than between husband and wife.
Apart from the issue of defining rape as an offence that can only be committed against a woman, the provisions of the Act restrict rape to non-consensual sexual intercourse between people who are unmarried thereby providing an exemption to married men. Essentially, married men cannot be prosecuted for engaging in non-consensual intercourse with their wives and also women cannot be prosecuted for rape at all under this law. Similar provisions exist in the various Criminal Laws across the country.
The Violence Against Persons (Prohibition) Act (VAPP), (2015) was enacted to provide greater protection from violence especially against women and children. The Act therefore provides progressive changes to many of the existing laws on sexual and other kinds of violence, for instance the Act defines rape in the following manner-
1. (1) A person commits the offence of rape if-
(a) he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else;
(b) the other person does not consent to the penetration; or
© the 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 misrepresentation as to the nature of the act or the use of any substance or additive capable of taking away the will of such person or in the case of a married person, by impersonating his or her spouse.
The Act also mandates the existence a register for convicted sexual offenders.[21] The Act also takes superiority over the Criminal Code Act and other laws that have provisions for similar offences within the same jurisdiction. Despite the laudable improvements to sexual violence laws provided by the Act, it has no provisions for the crime of marital rape, an example of the usual reluctance to making marital rape a criminal offence.
Rape is a horrible crime that can cause lasting physical, psychological and emotional damage to the victim and marital rape is no exception. A person does not stop being vulnerable to pain or bodily violation from another just because they have been married.
The lack of laws criminalising marital rape means the victims have no recourse and are therefore trapped in a horrible situation. It also emboldens those who are inclined to commit such crimes because they have no fear of legal retribution. Marital rape has been recognised by the United Nations as a form of violence against women, but the absence of marital rape laws in Nigeria hampers the global struggle against violence against women.
The case of the Sudanese girl who was sentenced to death for killing her husband who attempted to rape her after raping her the night before brought the issue of marital rape to the global stage.[22] Her sentence was eventually set aside by a superior court and she was given a lesser sentence and a fine however the case is an example of the negative consequences of legalizing marital rape.
Some may ask why there is a need for explicit legislation criminalising marital rape in Nigeria since the promulgation of the VAPP Act which claims superiority over the Criminal Code Act on sexual and violent offences including rape but without the marital rape exemption clause. The argument would be that since there is no marital rape exemption under the VAPP Act, a spouse could theoretically be prosecuted for rape under S. 1 of the Act.
This argument seems logical except for the fact that cultural, religious and sexist norms prevalent in society would make prosecutors and judicial officers reluctant to entertain a case of marital rape without the specific legislation. The rules of interpretation of laws could be used to argue that the absence of a specific law on marital rape means the legislators did not intend for it to be an offence after all the very same sympathies that led to the provision of marital rape exemption clauses can only be successfully suppressed with unequivocal legislation.
Another reason for passing marital rape laws is the fact that the VAPP Act is not applicable to all jurisdictions within Nigeria since it operates only in the Federal Capital Territory.
Marital rape criminalisation goes beyond just penalizing the act itself, but also how the act is criminalised, the wording used and the sentencing provided. As mentioned earlier, prior to the VAPP Act, and in jurisdictions where it does not apply, rape is regarded as a crime of which only women can be victims. Women who forcefully engage in sexual intercourse against men cannot be prosecuted for rape under these laws but for lesser offences such as sexual assault.
This is in contravention of S. 42(1) of the Constitution of the Federal Republic of Nigeria (as amended) 1999 which prohibits gender discrimination and does not reflect the reality of what some men suffer. The legislation of marital rape must therefore be written is such a way that it is not gender discriminatory as well as not providing for loopholes that basically amount to exemptions to the crime as is the case in some states of the United States of America and some other countries.
It is essential that marital rape exemptions are expunged and detailed laws criminalising marital are passed to protect spouses as well as provide justice for those raped by their spouses to ensure a more civil and safe society in Nigeria.
Recommendations
The act of marital rape must be criminalised and to do this adequate legislation should be passed, the Criminal and Penal Codes of the states as well as other laws dealing with sexual assault and rape amended to include marital rape specifically as a crime and the marital rape.
The process of criminalising marital rape must pass some benchmarks for its application to be optimal and equitable. First of all, marital rape must be unequivocally prohibited, that is to mean there must be no exceptions to marital rape. Since the most important ingredient of rape is the lack of consent, any sexual intercourse without consent by one of the spouses must render the other spouse liable so long as depriving the victim of consent was done intentionally.
It should not matter that the gender of the victim so long as harm is done, the law must provide an avenue for justice. Therefore, the definition of rape will have to be amended to be closer to the definition provided in the VAPP Act that makes rape a crime capable of being committed by and against both men and women. It must be possible for male victims to get justice where they are forced to engage in sexual intercourse by their spouses.
There must also be provisions for dedicated channels for reporting marital rape as well as other forms of domestic abuse. A framework needs to be created to cater for victims of marital rape due to the intimate nature of the crime and the psychological and social issues that may arise such as protection orders, institutions for recovery and therapy, shelter homes etc.
Some laws have provisions the need to protect victims of domestic abuse even apart from the arrest and conviction of the perpetrators, such as the VAPP Act[23], which provides for protection orders in circumstances where the alleged victim might be in danger from the alleged accused. Similar provisions should be made for victims of marital rape because of the danger of reprisal attacks as well as in situations where the victim is not the nominal complainant.
Sensitization should also be carried out to inform and educate the public about the fact that forced sexual intercourse against a spouse is wrong and illegal (once marital rape is criminalised), to bring an end to the act as well as inform victims that they can get justice through the criminal justice system if they are raped by their spouse. This is especially important if we are to rid our society of the entrenched beliefs that the wife owes her husband sex anytime he expects it as her role as a wife, which perpetuates a system of victimhood.
It is equally necessary that laws are passed to put an end to other practices which create or promote the circumstances that lead to marital rape in marriages such as child marriage, trafficking, forced marriage, etc. These practices contribute to subjugate women, and sometimes men, in marriages where their free will and bodily autonomy are inhibited leading to marital rape. A crucial first step would be in amending the Constitution to remove some of the provisions which support these practices, such as S. 29(4)(b) which provides that a married woman shall be considered a person of full age, tacitly encouraging child marriage.
Conclusion
Rape is a horrible crime that inflicts a great deal of physical, emotional and psychological harm on the victims and must be fought against in all its dimensions including marital rape. A marriage certificate should not be a license to rape someone without legal consequence because the effect is still the same whether by a spouse, family member or complete stranger. It is important that marital rape is made unequivocally criminalised because marriage should not be a license to inflict physical and emotional harm on another human being.
BIBLIOGRAPHY
Legislations/ Articles/ Resolutions etc.
1. Criminal Code Act, CAP 38, Vol. 4 Laws of the Federation of Nigeria, 2004
2. California Penal Code, 1872
3. Constitution of the Federal Republic of Nigeria(as amended), 1999
4. Declaration on the Elimination of Violence Against Women (1993) A/RES/48/104
5. Malawi Marriage, Divorce and Family Relations Act, 2015
6. Rwanda Law no. 59/2008 on Prevention and Punishment of Gender-Based Violence
7. Sierra Leone Sexual Offences Act, 2012
8. South Africa Family Violence Act, 1993
9. South Carolina Code of Laws, 2012
10.Zimbabwe Sexual Offences Act, 2001
Cases
1. Oregon v Whiteout (1978) 108, 866, Circuit Court, County of Marion, Oregon
2. People v Liberta (1984) 64 N.Y.2d 152
3. R v R (1992) 1 AC 599
Online Sources
1. Ceylan Yeginsu ‘Sudan won’t Execute Woman Who Killed Husband After Reported Rape, Lawyer Says’ New York Times (27 June 2018) https://www.nytimes.com/2018/06/27/world/africa/sudan-marital-rape-teenager.html
2. UN WOMEN Facts and Figures: Ending Violence against Women <www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures>
3. Jennifer Koshan ‘Sentencing for Spousal Sexual Violence: Different but Equal’ University of Calgary Faculty of Law Blog <ablawg.ca/2010/08/20/sentencing-for-spousal-sexual-violence-different-but-equal/>
4. Sexual Rights Initiative
<Sexualrightsdatabase.org/static/country-417.html>
Text Books
1. Garner B. A. (EiC), Black’s Law Dictionary (10th edn, Thomson West, 2014)
2. Simon, R. J., A comparative perspective on major social problems (Lexington Books 2001)
3. Vale, M., History of the Pleas of the Crown (E. and R. Gosling, 1800)
[1] Bryan A. Garner (EiC), Black’s Law Dictionary (10th edn, Thomson West, 2014)
[2] Cal Pen Code S. 262
[3] 1800, London, in the savoy: Printed by E. and R. Gosling (assigns of Edward Sayer, esq.) for F Giles, T. Woodward and C. Davis, OCLC 831163641.
[4] (1978) 108, 866, Circuit Court, County of Marion, Oregon
[5] (1984) 64 N.Y.2d 152
[6] South Carolina Code 16–3–615
[7] [1992] 1 AC 599
[8] A/RES/48/104
[9] Jennifer Koshan ‘Sentencing for Spousal Sexual Violence: Different but Equal’ University of Calgary Faculty of Law Blog <ablawg.ca/2010/08/20/sentencing-for-spousal-sexual-violence-different-but-equal/>
[10] Simon, Rita James, A comparative perspective on major social problems (Lexington Books 2001), 20.
[11] Sexual Rights Initiative
<Sexualrightsdatabase.org/static/country-417.html>. By way of a Supreme Court pronouncement
[12] S. 5, South Africa Family Violence Act (1993)
[13] S. 5, Zimbabwe Sexual Offences Act (2001)
[14] Rwanda Law no. 59/2008 on Prevention and Punishment of Gender-Based Violence
[15] S. 5, Sierra Leone Sexual Offences Act (2012)
[16] Malawi Marriage, Divorce and Family Relations Act 2015
[17] Facts and Figures: Ending Violence against Women <www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures>
[18](1984) 64 N.Y.2d 152
[19] S. 34, CFRN 1999
[20] CAP 38, LFN 2008
[21] S.1 (4), VAPP
[22] Ceylan Yeginsu ‘Sudan won’t Execute Woman Who Killed Husband After Reported Rape, Lawyer Says’ New York Times (27 June 2018) <https://www.nytimes.com/2018/06/27/world/africa/sudan-marital-rape-teenager.html>
[23] Ss.29, 30, VAPP, 2015