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—-Continue from Part 1—-

Penal Code’s Provision On Rape

stop sexual assaultThe Penal Code, a law applicable in & to Northern States makes provision for the offence of rape.

Section 282 of the Penal Code Law of Kano State CAP 105 Laws of Kano State of Nigeria 1959 provides for the offence of rape. The provision of this law is applicable to every other Northern state in Nigeria, as each Northern state has its own Penal Code with similar provisions. It provides that a man is said to commit rape where he has sexual intercourse with a woman in any of the following circumstances:

  • against her will;
  • without her consent;
  • with her consent: when the consent is obtained by putting her in fear of death or of hurt.

Others include with her consent, when the man knows he is not her husband and that her consent is given because she believes herself to be lawfully married;

  • with or without her consent, when she is under 14 years of age or of unsound mind.

The law obviously recognizes that rape is committed when consent is not obtained from a woman. It also recognizes the fact that rape can be committed where consent is obtained by infusing fear in the mind of the victim.

The Penal Code unfortunately does not recognize the concept of marital rape. It states that a man has committed rape when he obtains consent from a woman, knowing fully well that he is not her husband but the woman believes that the said man is her husband. This could be for instance, a case of deceit or fraud, where a man misrepresents himself as the husband of a woman just to take advantage of her.

Also, the law makes mention of the fact that a woman can be raped with or without her consent when she is under the age of 14 years or is of unsound mind. There are two critical issues here: Mental state and age. The law implies that from the age of 15 years, a female can give valid consent to sex, which is certainly unusual, considering the fact that the age of majority in Nigeria is 18 years (except in cases of contracts which is 21 years). On can argue that girls between the ages of 15-17 have no business engaging in sexual intercourse but unfortunately, the law does not protect them in this regard. It brings to mind the cultural and religious values and beliefs of the Northern people which influence their decisions. It is not news that child marriage is prevalent in these parts of the country; it is certainly not a surprise that this sort of law has the assent of the people present there.

On the issue of persons of unsound mind, it should be common knowledge that people who are not in the right state of mind cannot validly consent to any decision, which affects them or others. The concept of valid consent cuts across various areas of law ranging from contract law, to medical law, to family law, intellectual property law, among others. For sexual offences, the same logic applies. Mentally unstable women cannot give a valid consent to sexual activities, because even if she expressly states that she agrees, it is on the man involved, not to take advantage of her or the situation by refusing not to go on with the act.

The Penal Code has ample provisions on the offence of rape. It however does not cover rape of men just as the previously discussed laws. This brings us to a discussion on the enactment of the VAPP Act 2015, which covers issues that these other laws have omitted.

sexual assault rape

Violence Against Persons Prohibition Act 2015

 

The Violence Against Persons Prohibition Act 2015, a more recent legislation, which was passed on 23rd May 2015, applies to the Federal Capital Territory Abuja.

The object of the VAPP Act is to eliminate violence in private and public life, by providing maximum protection and effective remedies for victims and punishment of offenders.

The Act came about as a result of agitations for protection of persons from different forms of violence, which have in recent times become prevalent in the country. The VAPP Act has amplified the advocacy against rape, Female Genital Mutilation, partner battery, stalking, harmful widowhood practices by state actors while prohibiting all forms of violence, including physical, sexual, psychological, domestic, harmful traditional practices; discrimination against persons and to provide maximum protection and effective remedies for victims and punishment of offenders. It is only applicable in the FCT, Abuja. This is because even though the National Assembly made the law, it was

only made applicable in the FCT, and only the High Courts of the FCT have the jurisdiction over crimes created in the VAPP Act.

The Violence Against Persons Prohibition Act is the first historic piece of Nigerian legislation that recognizes that men CAN be raped. In other rape laws, only vaginal penetration could be classified as ‘rape’. This law states that unlawful anal or oral sex can be rape; it is the first piece of legislation to classify both acts as rape and not sexual assault. The Act makes provisions for ‘gang rape’ which is a very prevalent act/crime in our generation and also very rampant lately. The penalty for this crime is a minimum of 20 years imprisonment.

The VAPP Act takes away the discretion of judges regarding sentencing, to some extent; it states that once the crime of rape is proven, the offender must be sentenced to a minimum penalty of 12 years for rape. However, the judge still has the discretion to sentence the offender to more than 12 years. The Law also recognizes the rights of the survivor to financial compensation.

Financial compensation for survivors is an accepted development in Survivor’s rights that looks to help the survivor in rebuilding their life after an act of rape. For example, the survivor might need to go for therapy and counseling sessions after being raped, and this would most times be paid by the survivor or any of their loved ones. However, with the “victim compensation” initiative, the offender could be made to pay financial compensation to the survivor, which would cover these sorts of expenses. The Law also provides that sexual offenders when convicted will have their details entered into a sex offenders’ register. A sex offender register is a system designed to allow government authorities to keep track of the residence and activities of sex offenders, including those who have completed their criminal sentences. The Lagos State Domestic and Sexual Violence Response Team also has a sex offender’s registry where the names of all sex offenders in Lagos is stored. This system is definitely a step in the right direction as it may serve as a form of deterrence to potential offenders.

Section 1 of the Act states that a person commits the offence of rape if 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; if the other person does not consent to the penetration; or if the consent is obtained by force or means of threat 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 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. Sub (2) provides that a person convicted of an offence under sub (1) of this section is liable to imprisonment for life except:

  • where the offender is less than 14 years of age, the offender is  liable  to a maximum  of 14 years  imprisonment;
  • in all other cases, to a minimum  of 12 years  imprisonment without an option  of fine; or
  • in the  case  of rape  by a group  of persons,  the  offenders  are  liable jointly  10   a  minimum  of 20 years imprisonment  without  an option  of fine.

Sub (3) states that the Court shall also award appropriate compensation to the victim as it may deem fit in the circumstance.

By virtue of sub (4), a register for convicted sexual offenders shall be maintained and accessible to the public.

Only very few states in the South and West have their own home-grown criminal laws apart from the North (Penal Code) and a few others that have domesticated federal laws. Most states in Nigeria adopt the Criminal Code Act (discussed in Part 1).

Till Next time….

By Adesola Osuntoki & Olamide Agbontafara

List of Abbreviations:

CCA- Criminal Code Act

LFN- Laws of the Federation of Nigeria

VAPP- Violence Against Persons Prohibition Act

Credits and References

Eva_Nigeria, (12 September 2017) {https://www.evanigeria.org/violence-against-persons-prohibition-act-vapp/}<accessed 25 July, 2019>

‘5 Ways the VAPP has changed the offence of Rape in Nigeria’ <https://lawpadi.com/5-ways-vapp-changed-offence-rape-nigeria/ > accessed on July 25 2019.

Children and Young Persons Law of Lagos State 2015

Criminal Code C39 Laws of the Federation of Nigeria 2004

Criminal Code Law of Lagos State 2011

Eva_Nigeria (September 12 2017) <https://www.evanigeria.org/violence-against-persons-prohibition-act-vapp/ >accessed on July 25, 2019

The Lagos State Domestic and Sexual Violence Response team

Penal Code Law of Kano State, CAP. 105 Laws of Kano State of Nigeria 1959

Violence Against Persons Prohibition Act 2015

Read also: #ConversationsWithDes – Sexual Offences In Nigeria – Different States & Their Specific Penalties

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