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Rape: When does “No mean No”?

By Florence Amagiya

When the issue of the rape of a minor by a major more than 20 years ago was heralded in Nigeria recently, various reactions greeted the event.

The question people asked was why is the accusation coming out more than 20 years later? Others felt that, there was more to it than met the eyes. Some school of thought saw the lady in question as having the courage to speak up; after such a traumatic experience she must have had and lived with all this years.  Others thought that since she had been quiet all these while; then she should have forever held her peace.

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In all of these opinion, by all and sundry; one may not be able to tell the fact of the matter because no one was there but the two parties. But this question remains in the hearts and minds of Nigerians these days concerning what amounts to rape and ‘when is “No, No” enough and yes truly yes for consensual sex.Rape

It was against this background that WW sampled the opinion of Nigerians especially those who are stakeholders in different spheres of life to understand the event and probably give a direction. The big question is when does the word No mean No, and Yes mean Yes between a man and a woman.

Issue of rape and Law

For Barrister Anthony Iyasere, “The issue of rape in Nigeria is taking a very dangerous dimension and has become a source of worry. ‘It is an offense.’  Rape is one of the most heinous crimes that a person can commit. The effect on the victims usually lead to physical and psychological trauma.  There may also be health implications arising from rape such as when the victim gets infected with diseases such as gonorrhea, hepatitis B, HIV etc. The disturbing aspect is that most victims find it difficult to report for fear of stigmatization amongst other challenges.

“The Supreme Court in Jegede v. State (2001) LPELR – 1603 (SC), defined the offence of rape as the unlawful carnal knowledge of a woman or girl, without her consent or if 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. Per Belgore, J.S.C. (P.6-7, paras. F-G). There are numerous laws within our legal jurisprudence that governs the offence of rape whilst defining the ingredients that must be present before the offence of rape can be proved. Punishment is also prescribed when the offence of rape is successfully proved.

“Section 260 of the Criminal Law of Lagos State 2015 provides that any man, who has unlawful sexual intercourse with a woman or girl without her consent, commits the offence of rape and is liable on conviction to imprisonment for life. It goes further to provide that a woman or girl does not consent to sexual intercourse if she submits to the act by reason of force, impersonation, threat or intimidation of any kind, fear of harm or false or fraudulent representation as to nature of the act. It is further provided that sexual intercourse between a man and a woman who are married is not unlawful. What this means in law is that a woman cannot accuse her husband of rape. It is also provided in section 260 (4) of the above law that sexual intercourse is complete on the slightest penetration of the vagina. It is therefore immaterial that only a part of the male private organ penetrated the victim.

Offense on rape

“Proving the offence of rape is usually one that requires proof beyond reasonable doubt as stipulated by the Evidence Act. What this means is that the prosecution must ensure that no doubt is created in the prosecution of the matter as any doubt that exist will work in favour of the Defendant. In proving the offence of rape, prosecution must prove beyond any iota of doubt that there was penetration as well as the absence of consent.

“That is why in cases of rape, the victim must within the shortest possible time report herself to a police station where she is thereafter taken to a health facility for proper tests in order to prove through expert opinion that there was indeed rape.

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“A victim who decides to go on with her life and fails to immediately report the incident may not succeed in the court of law if after several days, weeks, months or years decide to report the incident to the relevant agency or government.

“Such a victim may however resort to social media to expose and shame her abuser, but then the court of public opinion cannot convict. Such an abuser may however choose to admit it or resort to the court of law to sue for damages on grounds of defamation where he feels that the allegations is false”, he said.

In her contribution, Barrister Almiral Udolu, further explained that, “Section 357 and 358 of the Criminal Code Cap C38 Laws of the Federation of Nigeria defines rape and gives the ingredients of rape and defines rape as “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 threat or intimidation of any kind, or by fear or 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 rape. Now, from the definition, we can posit that the ingredients in proving rape includes but not limited to;

Canal knowledge

“Firstly, carnal knowledge of a girl or woman against her will, secondly, without her consent. Consent obtained by means of threat or fear or harm or death. It also stated that having carnal knowledge of a girl less than 14 years with or without her consent is also rape. Also,  carnal knowledge with a girl of unsound mind or a girl under the influence of alcohol or drugs is rape. If you misrepresent as the husband of a woman whereas you are not is also rape.

“The law states that for rape to be properly established, there must me corroboration which will either be in form of witness account or medical evidence. There must also be penetration no matter how slight and with or without ejaculation.

“Though in the penal code, consentable age is pegged at 13 years, it will be regarded as rape if the girl in question has not attained puberty.  It is also note worthy that our law does not provide for rape between husband and wife.

“So, when we say rape, what we should be looking at is whether there was consent or not. It does not matter whether consent was gotten at the initial stage, when consent is withdrawn even in the act of intercourse; any further thrust is regarded as rape.

Consent

“Consent is important irrespective of whether the person involved is a common prostitute or not, irrespective of whether the complainant decided to dress in a suggestive way or not. everybody has autonomy of their body whether male or female and where such autonomy is violated by another, it is a sexual offence and where penetration is involved, it is rape.

“The offence of rape is not statute barred. Victims of such can decide to report at any time they choose. However, due to the ingredients of proving rape, it is advisable to report the incident within 72 hours of the act.

“When we look at what has been in the air for some time now, the stigmatisation by society and denial by family members, it will be safe to say that rape is not a crime that is known to Africans especially when it does not involve a child. This position must be disabused and the ingredients of rape looked into so that victims can be free to speak out because they know they will definitely get justice no matter the time.

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“This therefore shows that we need an overhauling of our Nigerian criminal systems so grey areas can be tested and used as precedents. Section 357 and 358 of the Criminal Code Cap C38 Laws of the Federation of Nigeria defines rape and gives the ingredients of rape and defines rape as “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 threat or intimidation of any kind, or by fear or 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 rape.

“Now, from the definition, we can posit that the ingredients in proving rape includes but are limited to;

The law states that for rape to be properly established; there must be corroboration which will either be in form of witness account or medical evidence. There must also be penetration no matter how slight and with or without ejaculation.

“Though in the penal code, consentable age is pegged at 13 years, it will be regarded as rape if the girl in question has not attained puberty.  It is also note worthy that our law does not provide for rape between husband and wife.

“So when we say rape, what we should be looking at is whether there was consent or not. It does not matter whether consent was gotten at the initial stage, when consent is withdrawn even in the act of intercourse; any further thrust is regarded as rape.

“Consent is important irrespective of whether the person involved is a common prostitute or not, irrespective of whether the complainant decided to dress in a suggestive way or not.  Everybody has autonomy of their body whether male or female and where such autonomy is violated by another, it is a sexual offence and where penetration is involved, it is rape.

“The offence of rape is not statute barred. Victims of such can decide to report at any time they choose. However, due to the ingredients of proving rape, it is advisable to report the incident within 72 hours of the act.

“When we look at what has been in the air for some time now, the stigmatisation by society and denial by family members, it will be safe to say that rape is not a crime that is known to Africans especially when it does not involve a child. This position must be disabused and the ingredients of rape looked into so that victims can be free to speak out because they know they will definitely get justice no matter the time.

“It is also my recommendation however that our laws should be reviewed to allow a man who has been sexually abused by a woman to seek redress in court as our laws as presently constituted does not recognize the fact that a man can be sexually abused by a woman. I must also commend the Lagos State government for ensuring that the punishment for rape is life imprisonment with no option for fine”, Barr Anthony corroborated.

Another respondent, Sam Anokam, a journalist, added that, ‘When an adult says that she is not disposed to have sex and she is forced against her will; then it is rape. But when a consenting adult agrees to have sex with another consenting adult then it is not rape’.

In her opinion, Chinyere Nwagbo, a Radio/ TV Personality, said, “I think at the centre of this issue is the word consent. Sex should be consensual with the willing agreement of both parties. When it is done under duress or without the approval of one of the parties, then it is rape.

“Rape is about forcing another person to have sexual intercourse against their will. A man can rape his wife, a boyfriend his girlfriend; as long as one of them has told the other no, whether the reasons given are cogent or not, it is important to respect their decision and stop”, she said.

Also, a business woman, Favour Orizu, “We all know that it takes two to tangle. My opinion on this issue is simple. If a woman doesn’t want it, then her opinion should be respected but on the other hand, the man shouldn’t be led on. Most times, women are the cause of their problems.

“Why would you expose all your vitals and wonder if the man is a super human. Please we should learn to dress the way we want to be addressed. I am not holding brief for a Rapist, in fact l would kill one if my hands can reach one but we should be careful, stay away from places of unknown. Go to places when we truly know who we are going with and pray without ceasing, God would lead us surely out of temptation and untold hazard”, she said.

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