Can a female commit rape? It’s difficult for a man to be raped – Prof Itse Sagay

on   /   in Law & Human Rights 1:00 am   /   Comments

By Bartholomew Madukwe

In recent times, cases of rape and sundry sexual molestations seem to be on the increase. There is hardly any day without one report of rape or the other. Worried by the development, the lower chamber at the National Assembly, the House of Representative, is currently considering a bill that seeks to prescribe life imprisonment for a convicted rapist and 20 years for an accomplice. . An accomplice, for instance, is an on-looker when the act is being committed.

The bill, which has passed second reading in the House, is being sponsored by Hon. Abike Dabiri Erewa. The House seems to have taken a cue from Lagos State, which already in its Criminal Law of 2011, in Section 258, prescribes life imprisonment for a rapist.

According to Section 357 of the Criminal Code Laws of the Federation: “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 act, or, in the case of a married woman, by personating her husband is guilty of an offence which is called rape.”

Similarly, Section 582 (1) of the penal code provides thus: “A man is said to commit rape, who save in the case referred to in subsection [2], has intercourse with a woman in any of the following circumstances against her will, without her consent, with her consent, when her consent has been obtained by putting her in fear of death or of hurt, 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 herself to be lawfully married; with or without her consent, when she is under fourteen years of age or of unsound mind.”

However Section 258 of Lagos state Criminal Law 2011 has a similar provision. It says “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.”

Speaking on the bill, House Committee on Human Rights, Hon. Beni Lar, said that rapists would face life imprisonment once the current Violence against Persons Bill becomes law, adding that the National Assembly had decided to expedite action on the passage of the bill considering the increasing prevalence of rape in the country.

Cases and statistics from other jurisdictions.
According to a documentary on the issue of rape by women, a woman who raped a twelve year old boy, held him down and forced him to have sex and then pushed him off a bridge so he wouldn’t talk, but couldn’t be charged with rape because women can’t be charged with raping men. A U.S. Bureau of Justice Statistics said that less than 1% of all incarcerated rape and sexual assault offenders were femal. By 1997, however, 6,292 females had been arrested for forcible rape or other sex offenses, constituting approximately 8% of all rape and sexual assault arrests for that year. Additionally, studies indicate that females commit approximately 20% of sex offenses against children. Males commit the majority of sex offenses but females commit some, particularly against children.In 1978 in the UK, Joyce McKinney was sentenced to 12 months in prison for forcing a man to have sex with her while chained up, but she did not serve it because she jumped bail. Several widely publicized cases of female-on-male statutory rape in the United States involved school teachers raping their underage students.

Lar said: “My only concern is that in our laws today, the punishment for rape is very light and that is why you find people committing rape against children. It’s unfortunate. It is because of issues like this that it has come to the attention of the National Assembly that we have the Violence Against Persons Bill.

“It is a bill that seeks to eliminate violence in private and public life, to prohibit all forms of violence including physical, sexual, psychological, domestic, harmful traditional practices, discrimination against persons and provide maximum protection and effective remedies for victims and punishment for offenders.

“It would no longer be business as usual with the passage of the law. Why we have an increase in this violence is because we have a culture of silence. Most of the people that commit acts of violence against women are people that are known to women.

Against this backdrop, a pertinent question then begs answer. What happens if a female sexually assaults a male since the law does not contemplate that a female has capacity to rape? Put more succinctly, can a female rape? A recent incident probably illustrates the question.

Two young ladies stopped a commercial motorcycle operator popularly referred to as Okada and asked to be taken to a destination. Midway into the journey, at a lonely place, they stopped the motorcyclist at gun point and ordered him to pull his trouser and lay on the ground. The two ladies took turn to have sexual intercourse with him at gun point. When they were done, they told him that they were HIV positive and intended to spread it because they were also infected by men.

The question again is:  In the eye of the law can the two ladies be deemed to have committed rape?  Some lawyers spoke on the issue.

I have doubts whether a woman can commit rape; the reason is that a man has to be aroused sexually to be able to have sex with a woman. If a woman tells a man that he must have sex with her, it won’t work because the man will be so frightened and disorientated that he won’t really be able to do it. Under that circumstance, the man won’t be able to be in the proper physical mood to be able to have sex with the woman.

So I have my doubts and I really need to be convinced that a woman can rape a man because of the anatomical difference between the two sexes. A woman can easily be raped because her anatomy is such that it is the one that is penetrated.

That is why I find it difficult to say that a man can be raped because he does the penetration, if he is not inclined noting will happen. Infact the law may be neutralized, since Nigerian laws are neutralized these days. There is no distinction between man and woman, like in the family law and others.

No offense if victim is a male — Ekwunoh Morah

In the Nigeria criminal jurisdictions, the offense of rape is similarly created and defined by both the Criminal Code Laws and the Penal Code. Since the cardinal and operative language and expression in the law creating and defining the offense of rape talks about having unlawful carnal knowledge of a woman or girl, and not of a man, there is clearly no offense when the person whose carnal knowledge is a man.

Thus, express mention by the extant laws that the person whose unlawful carnal knowledge should be had to constitute rape must be a woman or girl, and not a man, means implied exclusion by the said laws of women and girls as capable committing rape under our criminal law.

This is sad and most unfortunate, though this is of the very nature of justice according to law, and not law according to justice, which law Honorable Justice Nnaemeka-Agu of the Supreme Court (as he then was) aptly described as an unruly ads, which keeps galloping only along the paths of law.

If the law does not specifically require that for rape to take place it must involve unlawful carnal knowledge of a woman or girl, and not such knowledge of a man, the conducts of the ladies in forcing a male into sexual relationship would have clearly constituted rape.

In many jurisdictions, particularly in Europe and America, where  elastic, flexible and liberal creation and definition is given to the offense  of rape as among others, “sexual intercourse, or other form of sexual penetration, of one person by another person without the consent of the victim…”

In those jurisdictions, since creation and definition of the offense of rape is of unlawful sexual intercourse of person by another person, which creation and definition do not specify, as is the case in Nigeria, the sex of either the offender or the victim, anybody, whether a man, lady or girl, can be prosecuted and convicted for rape.

It is due to the jurisdictional differences in the creation and definition of the offense of rape, and not due to lack of organ of penetration in ladies and girls, that no trials and or convictions of ladies and girls, for rape, have been, or can be premised in Nigeria. Whereas, ladies and girls have been tried and convicted in other jurisdictions where the offense of rape has elastic, liberal and flexible creation and interpretation.

On the whole, it is sad and most unfortunate that ladies and girls cannot be tried and convicted in Nigeria for rape, even with the highly aggravating circumstances. No doubt, This brings to the front-burner the urgency of legislative intervention in this regard, which appears imperative, in order to amend our Criminal Code Laws and its Penal Code counterparts with a view to bringing us at par with other advanced jurisdictions where ladies and girls, and not only men, can be tried and convicted for rape.

It is yet to be criminalized — Izuagie Usman

Over the years, so many arguments have cropped up in respect of this same issue, as to whether a woman can commit rape as our legal system is. I want to say categorically that there has been no law in Nigeria criminally to that effect.

According to our law as it defines rape, rape exists when there is a penetration of a male organ into the female organ. By this definition, one will understand that it is only the male that can commit rape, and not a woman.

But we find in our modern day life the way women lure men into committing rape. In the eyes of Nigerian law, women can only lure men to commit rape but they cannot on their own commit rape.

Morally, from what we have seen, women do commit rape but we just have to work by our law. Whatever we do in our legal system here, is a copyright of what is obtainable in the western world.

In the US, what is obtainable there is that any person can commit rape. But here in Nigeria, as our legal system is, only the male can commit rape. In terms of our laws, I think we should begin to work in line with what is obtainable in the US, that rape is being committed by both sex.

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