A fortnight ago, we discussed the issues surrounding rape, harassment and how survivors of abuse could potentially become abusers in the future. Still on the issues surrounding abuse, I felt the need to discuss the legal consequence of this act on the abusers and generally the result/punishment of the dastardly act that is Rape.
Sexual offences constitute one of the gravest crimes a person could commit. This is owing to the fact that; it is an offence against another individual and a violation of the said individual. The act usually results in immense damage on the survivor’s physical and mental health. Every State has a duty to care for all its citizens and residents of that state. It is for this reason that the State (through the legislature) has enacted laws, which impose different penalties for the various forms of sexual offences.
The penalties for Sexual offences vary, depending on the law being applied.
The Criminal Code C39 LFN 2004 (a legislature/law) is generally applied/used in offences that occur in the Southern part of Nigeria, i.e., all the States in the Southern part of Nigeria apply this law to Sexual offence (and other offence) cases. On the other hand, the Penal Code (a legislature/law) applies to the Northern part of the country, i.e., this law is applied to offences (sexual or others) that occur in the North. To make it easier, Offence (in the Southern part of Nigeria) = Criminal Code, whilst Offence (in the Northern part of Nigeria) = Penal Code. Do you now get it?
There are also legislations that specifically deal with sexual offences and not crimes generally. A comparison of these laws would be discussed further.
The Provision of the Criminal Law of Lagos State 2011 (CLLLS) on Sexual Offences
Section 258 provides for Rape by stating that any man who has unlawful sexual intercourse with a woman or girl, without her consent, is guilty of the offence of rape and liable to imprisonment for life. Subsection (sub) (2) provides that a woman or girl does not consent to sexual intercourse if she submits to the act by reason of force, impersonation, threat or intimation of any kind, fear of harm or false or fraudulent representation as to the nature of the act. Sub (3) – sexual intercourse between a man and a woman who are married is not unlawful. Sub (4) – sexual intercourse is complete on the slightest penetration of the vagina.
Sexual Assault by Penetration is provided for in Section 259 which states that any person penetrates sexually the anus, vagina, mouth or any other opening in the body of another person with a part of his body or anything else, without the consent of the person is guilty of a felony and liable to imprisonment for life.
Section 260 provides that any person who attempts to commit the offence of rape or sexual assaults by penetration is guilty of a felony, and is liable to imprisonment for fourteen years.
Regarding sexual assault, Section 261 provides that any person who sexually touches another person without his consent is guilty of a felony and liable to imprisonment for three years. Sub (2) highlights that touching may be done with any part of the body or with anything else.
According to Section 262, any person who sexually harasses another is guilty of a felony and is liable to imprisonment for three years. Sub (2) states that sexual harassment is unwelcome sexual advances, request for sexual favors, and other visual, verbal or physical conduct of a sexual nature which when submitted to or rejected:
(a) Implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interferes with the person’s work or educational performance;
(b) Implicitly or explicitly suggests that submission to or rejection of the conduct will be a factor in academic or employment decisions; or
(c) Creates an intimidating, hostile or offensive learning or working environment.
For defilement, Section 137 provides that any person who has unlawful sexual intercourse with a child is guilty of a felony, and is liable to imprisonment for life.
CRIMINAL CODE ACT C38 LFN 2004 provisions on Rape, Harassment & Sexual Assault
Section 218 of the Criminal Code Act (CCA) C38 LFN 2004 provides for the offence of defilement by stating that any person who has unlawful carnal knowledge of a girl under the age of thirteen years is guilty of a felony, and is liable to imprisonment for life, with or without caning. Any person who attempts to have unlawful carnal knowledge of a girl under the age of thirteen years -is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning.
Section 357 provides 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 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.
Section 358 states that any person who commits the offence of rape is liable to imprisonment for life, with or without caning.
Section 359 provides that any person who attempts to commit the offence of rape is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning.
Section 360 states that any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanor, and is liable to imprisonment for two years.
From the above, it can be deduced that the Criminal Law of Lagos State and the Criminal Code Act have similar penalties for sexual offences. Both legislation impose life imprisonment on any person convicted of rape. Likewise, they both impose imprisonment for fourteen years for attempt to rape. The difference in this respect is that the Criminal Law of Lagos State further provides for the offence of an attempt to commit sexual assault by penetration and imposing the same penalty for attempt to rape, that is, fourteen years imprisonment.
For sexual assault, the penalty is two years imprisonment under the Criminal Code while it is three years imprisonment under the Criminal Laws of Lagos State. Regarding defilement, the Criminal Code Act provides that unlawful carnal knowledge of a girl under the age of thirteen is an offence with a penalty of imprisonment for life. The same penalty is attached to defilement under the CLLS. However, the Criminal Laws of Lagos State states that unlawful sexual intercourse with a child is defilement while the CCA states that unlawful carnal knowledge with a child under the age of thirteen is defilement, leaving a lacuna in the law regarding children above the age of thirteen.
The Violence Against Persons Prohibition Act 2005 is a more recent legislation, which was passed on 23rd May 2015; to be administered by National Agency Prohibition of Trafficking In Persons applies to the Federal Capital Territory Abuja.
The Children and Young Persons Law of Lagos State provides that a child is anyone under the age of fourteen years while a young person is one who as attained the age of fourteen and above but not older than eighteen years of age.
VIOLENCE AGAINST PERSONS PROHIBITION ACT 2015
The Violence Against Persons Prohibition Act 2005 is a more recent legislation, which was passed on 23rd May2015; to be administered by National Agency for Prohibition of Trafficking In Persons 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 it was made by the National Assembly, 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 which 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 counselling 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 all the 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.
Just as Lagos state has the Criminal Law of Lagos State and the Federal Capital Territory has the Violence Against Persons (Prohibition) Act, Oyo state also has its own specific legislation on rape and other sexual offences called the Violence Against Women Law of Oyo State 2016, Section 6(1) of the latter provides for the offence and 6(2) provides for the penalty of rape as life imprisonment, which is a domestication of the VAPP Act. 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.
—————————————-To Be Continued———————————————-
List of Abbreviations:
CCA- Criminal Code Act
CLLS- Criminal Law of Lagos State
LFN- Laws of the Federation of Nigeria
VAPP- Violence Against Persons Prohibition Act
Criminal Code C39 Laws of the Federation of Nigeria 2004
Criminal Code Law of Lagos State 2011
The Lagos State Domestic and Sexual Violence Response team
Penal Code (Northern States) Federal Provisions Act Cap. P.3 Laws of the Federation of Nigeria 2004
Violence Against Persons Prohibition Act 2005
Violence Against Women Law of Oyo State 2016
Till Next time…
By Adesola Osuntoki & Olamide Agbontafara