RAPE, SEXUAL ABUSE AND SEXUAL MOLESTATION



The social media and other conventional media outlets were recently set ablaze with the discourse of the raising cases of rape, sexual abuse and sexual molestation across the globe, particularly in Nigeria. Many of those who made their opinion known recommended stiffer punishments to be meted to offenders to serve as a deterrent to others; some even went extreme to subscribe for jungle justice to be meted to offenders which to me is like recommending a reversal from our present age to the Hobbesian state of nature which I think is off the mark.

It is unfortunate that every minute of the day, there are victims of rape, those who have either been sexually abused or molested, and because of the fear of being stigmatized, these cases are usually under reported, and this gives offenders and perpetuators the impetus to continue in their dastard actions.

Francis Becon noted that, “Laws are like wobwebs where small flies are caught and the great break through”. This assertion implies herein that there are many offenders of rape and sexual molestation left off the hook by the law because of their social status and connections while the small flies are exposed. Ironically, while most Nigerians have kicked against the evil action of rape, many are ignorant of the stringent intricacies surrounding the establishment of facts against an offender of rape before the law court. This has made it almost impossible to convict offenders of rape in Nigeria.

It is true that most victims of rape are women, but this cannot put away the fact that men also victims of rape as will be established later in this discuss. We cannot also downplay lesbian rape with involves female to another female, or the sodomy rape which involves a male to another male victim.

But one of the rarely discussed cases in Nigeria is justified rape. I describe justified rape as a case where an underage female child is given out into marriage to a full grown adult male. To me, the parents of the girl-child and other members of her family by their action have sentenced the young girl to a continual rape which they have justified under the pretense of marriage. Such a female child is made to live forever until death with the pains and psychological trauma of having to live under the same roof with her abuser, and cannot be prosecuted by the law. This is rather very unfortunate.

Herein, we shall be looking at the extant laws in Nigeria and how it has made it very hard to dissuade the act of rape and other sexual related offences like sexual abuse and sexual molestation.

Rape against women is a major ill plaguing the Nigerian society and one of the least reported crimes in Nigeria. This is due to the societal stigma attached to it in Nigeria (Ashiru, 2010; Fagbongbe, 2010; Alemika & Alemika, 2005). It is mainly perpetuated by men against women. It is said to be a “sex-specific offence which can only by committed by men on women” in Nigeria (Imasogie, 2010:14). Section 357 of the Criminal Code Act states that:

Any person who has unlawful carnal knowledge of a woman or a 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 impersonating her husband, is guilty of an offence which is called rape.

A major hindrance in rape cases in Nigeria is the rules of evidence which are stacked up against the victims in courts. For example, Section 211 of the Evidence Act states thus:
When a man is prosecuted for rape or for attempt to commit rape or for indecent assault, it may be shown that the woman against whom the offence is alleged to have been committed was of a generally immoral character, although she is not cross-examined on the subject; the woman may in such a case be asked whether she has a connection with other men, but her answer cannot be contradicted and she may also be asked whether she had connection on other occasions with the prisoner, and if she denies it may be contradicted.

This passage is based on the old English common law maxim where the general bad character as to the sexual morality of the prosecutrix is relevant, not only to her credibility as a witness, but also to the issue (Aguda, 1998; Ashiru, 2010).
The Penal Code has similar provisions to the Criminal Code as per the offence of rape in Nigeria. However, in Nigeria, a husband cannot be guilty of the offence of ‘rape’ of his wife. This is because Section 6 of the Criminal Code defines ‘unlawful carnal knowledge’ as carnal connection which takes place otherwise than husband and wife.

The basis of this law is founded on the culture and religious antecedents of the Nigerian society. Also, it can also be localized in the erstwhile English common law. In the case of R v Roberts, the court held that “the status of marriage involves that the woman has given her consent to her husband having intercourse with her during the subsistence of the marriage…she cannot unilaterally withdraw.”

The exceptions under common law (also applicable in Nigeria) include where a decree of divorce is in existence, where the parties are living separately under a separation order of a court, where the husband has given an undertaking not to return to the wife, where a party has filed or started divorce proceedings, where there is a separation order agreed upon by the parties and where there is a court order prohibiting contact with the wife (Imasogie, 2010).

This provision goes against the current worldwide trend in legislating against marital rape in other jurisdictions. It also contrary to a plethora of international treaties which Nigeria is party to, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the African Charter on Human and Peoples Rights and the Protocol on Rights of Women in Africa amongst others.

Under the Sharia Penal Code, a husband cannot be guilty of marital rape. Section 127 of the Zamfara harmonized Sharia Code states:

A man is said to commit rape if he has sexual intercourse with a woman in any of the following circumstances: (a) against her will (b) without her consent (c) when her consent has been obtained by putting her in fear of death or 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 to be lawfully married (e) with or without her consent when she is under fifteen years of age or of unsound mind. (Oyelade, 2007-2009:266)

This provision is similar to the Penal Code. Furthermore, “under Islamic law, a husband may be liable for injury caused or occasioned by forced sex with his wife, but he can never be liable for rape so long as there is a valid subsisting marriage between them” (Oyelade, 2007-2009:266). This is similar to the provision of the Criminal Code.

Evidence shows that women who accuse men of rape are subject to judgment of their character and there is no recognition of marital rape, thus there is limited protection for women in Nigeria (Anaba, 2007). Here, the victims (who are mostly women) have to rely on the provisions in the Criminal Code on common assaults in cases of ‘marital rape’ occasioned by the activities of their husbands.

In terms of sentencing both the Penal and Criminal Codes prescribe life imprisonment as punishment for offenders. Under the Sharia Penal Codes, rape is form of ‘zina’, that is, illicit sexual intercourse (Ashiru, 2010). To prove the offence of ‘zina’, a confession of four witnesses is essential; otherwise, the victim could be liable for defamation where a confession cannot be procured from the offender. (Ashiru, 2010). Also, the victim could be prosecuted for the offence of rape, where the required number of witnesses (four) is absent.

Furthermore, the Sharia Codes provide for discriminatory punishments for married and unmarried offenders (usually women). Here “married offenders are liable to stoning to death while unmarried offenders are liable to the lenient punishment of only one year imprisonment and caning with lashes up to a maximum of one hundred” (Alemika & Alemika, 2005:89-90).

These provisions of the Sharia Codes are unconstitutional and go against various provisions of the Constitution prohibiting degrading treatment of people, freedom of religion and protection against discrimination amongst others. However religion is a highly politicized issue in Nigeria, and this is a stumbling block to promotion of women’s rights in some parts of Nigeria, especially in the North.

And here comes the main problem, in Nigeria, for the offence of rape to be properly established, there must be corroborative evidence which usually comes from eyewitnesses account or medical evidence. As regards eyewitnesses’ corroboration, the law requires that such witnesses must have witnessed the actual penetration of the victim’s vagina. How this is possible, practically speaking, at all times, defeats my wildest imagination. Most often than not, sex offenders will not undertake the abominable act in a place easily accessible to members of the public and there is always the possibility that before any eyewitness finally reaches a rape crime scene, the offender would have disengaged from the victim which ultimately means that rape as a criminal offence cannot be established but a lesser offence of attempted rape.
With this kind of law in place in Nigeria, you will agree with me that convicting a rape victim in Nigeria is like trying to combine the age of Methuselah and with wisdom of Solomon inside one being. Our major take herein should be to agitate for the right laws to be put in place that will make it easier to prosecute rape offenders because I don’t think we have any problem with the present punishments laid down for offenders.

 


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