Rape and the Nigerian Law
The prevalent upsurge of rape and sexual abuse in Nigeria, especially now that children are not left out, is quite baffling. Most recent is the 2-year-old raped by a 25-year-old in Somolu, Lagos; and the 3-year-old raped by a 35-year-old in Dolphin Estate, Lagos. My heart bleeds as I write this! These children are powerless and blameless! At least a 2-year old or a 3-year-old is not a slutty dresser, lest we take that as an excuse. How could an insane pedophile take advantage of what defines a child — innocence, trust, and defenselessness? Shouldn’t these abnormal beings be incarcerated so as to prevent them from committing more havoc?
Extra judicial killings, torture, terrorism, corruption, violation of human rights, among several other crimes are endemic issues we are having to deal with at the same time, and these challenges are gradually becoming too rampant that we seem to be developing corresponding tougher skin to accommodate them. This includes rape — we talk about it in shock and disgust, and it ends there! Isn’t that a dismissive approach? Or what stops us from ‘occupying Nigeria’ to declare our rejection of this crime against humanity. Perhaps, it may be worth protesting against when it happens to a daughter, niece, sister, or the relative of a prominent figure.
My curiosity provoked my research into what the Law presently has in curbing this menace. I realize, however, that the attention that has been paid to this silent national pandemonium by the government is not encouraging. Lack of verifiable statistics, which is crucial in establishing the extent, hence seriousness of rape, is one way that the government has displayed her nonchalance towards eradicating this menace. Culprits practically walk free on our streets, and the victims are silently and slowly ‘killed’ leaving them to deal with the personal repulsion; social and reputational stigmatization; physical, psychological, and reproductive challenges; as well as the disappointment arising from the flippant manner in which the case is handled, if reported. This explains some reasons why victims would rather be silent, yet that silence is permission to existing and would-be criminals to do more.
Digging into the provisions of the Law on rape and sexual abuses, it is clear that a lot still has to be done if we must achieve a rape/sexual abuse-free nation. Another major way the Nigerian government is failing in this obligation is the several federal, state, sharia, and customary laws definition given to ‘rape’, which makes it rather complicated. Isn’t it possible to have one nationally accepted holistic definition of rape, so that it eliminates any form of complexity, ambiguity, and misinterpretation?
The Penal Code opines that: “A man can be held guilty of rape if he has sexual intercourse with a woman without her consent, or with her consent, if consent was unlawfully obtained” and Section 357 of the Criminal Code Act, CAP 77, LFN, 1990 opines 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 false threats or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act, or in case of a married woman, by personating her husband is guilty of an offence called rape.” The Criminal Code went further to explain that: “when the term ‘carnal knowledge’ or the term ‘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.” The Criminal Code, in its explanation of ‘carnal knowledge or ‘carnal connection’, has simply emphasized the restrictive impression that rape can only be established when it is a penile-vaginal penetration.
Furthermore, the use of ‘Any person’ and ‘A man’ as stated by the Criminal Code Act and the Penal Code respectively implies that rape can only happen from one man (in gender and number) to a woman. Question is, what happens when a man is raped (although some argued a man cannot be raped)? Where is the provision for ‘gang rape’ which involves more than ‘a man’/’any person’? In my opinion, these definitions are restrictive, narrow, gender-imbalance, unfair, lopsided, and lacks the exhaustiveness needed to accommodate the present uniqueness and complexity of rape in Nigeria.
It is particularly worrisome that the Laws of the Federation of Nigeria (LFN, 1990) is 23 years old; whereas, in 2002–11 years ago, the World Health Organization (WHO), in her bid to keep up with current realities defined rape as: “physical forced or otherwise coerced penetration — even if slight — of the vulva or anus, using a penis, other body parts or any object.” At least, this definition provides for the possibility of rape with other objects asides the penis, and it is not specific that it has to be one man to one woman.
Another bothersome issue is the necessary action needed to ensure reduction of this scourge, which in itself will serve as a reference for determent. The Penal Code provides that rape is a criminal offence that is punishable by imprisonment of up to 14 years, which can be combined with a fine; and up to 7 years and a fine in the case of a child-related sexual assault (defilement); the Criminal Code in Section 358 provides that rape is punishable by “life imprisonment” with the possible addition of caning. If these punishment were assiduously followed, perhaps we might allude to its sufficiency in causing determent, but where bail is granted, in such ridiculous amount as may be easily afforded, then the Law is not only giving room for more incidences of rape, it is also not ensuring proper justice that should be accorded to the weight and innumerable consequences of the offence. This explains why a Nigerian pedophile who recently raped a 3-year-old was granted bail on a N250,000 surety! What is this amount compared to what is to be achieved if adequate corrective measures were taken?
The seeming unending length of time used in adjudicating criminal (and other) matters in Nigeria’s judicial system is another cause for concern; yet, more disturbing is the ‘burden of proof’ that is primarily on the culprit. Since a criminal is presumed innocent until proven guilty, the onus therefore rests on the victim — the prosecution — to evidentially convince the judge, beyond every reasonable doubt, that she has been raped by the culprit — the defendant. And in situations where the prosecution is unable to sufficiently prove the defendant’s guilt, the Law has not empowered the Judge to draw inferences regardless of obvious and personal conviction.
Another deeply bothersome issue is in proving the guilt of the defendant, where the victim is required to provide evidences demonstrating the criminality of the defendant and the innocence of the prosecution. This entails that the victim must immediately report to the police and get a medical report from a government-run hospital, which is the only forensic evidence that is admissible. How practical is it for a victim go to the Police station immediately after a rape incidence? What is there is not around? What happens where there is no government-owned hospital around the vicinity of the incidence? Where there is one, the victims would have to pay for such reports, and most likely wait on a long queue to be attended to. What if she doesn’t have money at that time? What if she needs to urinate, as is the case after a sexual intercourse? Does this mean admissible evidences would be destroyed? Realistically, how will an already-shattered victim be coordinated enough to go to the hospital, when the first thing she might want to do is to sort herself out, get herself to a safe place, and wash off. Yet, the cogency, hence admissibility, of the evidence is threatened if the victim washes herself (mouth, body, clothes), drinks liquid, urinates, or takes any other bodily action. What happens to a 9-year-old who doesn’t even know what to do and her parents did not noticed on time so as forensic evidences can be gathered? Shouldn’t these evidential demands be reviewed to give room for realities?
It is imperative, therefore, that other than sensitizing relevant stakeholders, it is of utmost expedience that the provisions of the Nigerian Law and other practices be amended to accommodate present-day realities, as well as ensure Nigeria’s conformity to international Human Rights laws as it bothers on rape, molestation, defilement, incest, and other sexual-related abuse; without which we will only be trying to kill a lion with a razor blade.
This is the time for action!
