By Raymond Oise-Oghaede
IT is a well-known fact that ‘rape‘ is a serious criminal offence that has attracted and is still attracting outrage and condemnations from every corner of all civilized societies. According to Section 357 of the Criminal Code Act: “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 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.”
From the definition, it is clear that the carnal knowledge will still be unlawful even if the consent of the woman or girl is obtained ‘incorrectly‘ (e.g. statutory rape). Also, Section 31 (1) of the Child Rights Act (2003), states that: “No person shall have sexual intercourse with a child.” This is further buttressed by Section 31 (3) which also states that, where a person is charged with an offence under this section, it is immaterial that (a) “the offender believed the person to be of or above the age of 18 years” or (b) “the sexual intercourse was with the consent of the child.” So, for those who are positing that it was a ‘consensual affair’ and not a rape because the act was repeated with no struggle, no screaming and no bruises; these provisions will instructively put away such postulations. In this case, even if the child (below 18 years) gave her consent to the act, that will still not exonerate the accused because the girl is below the ‘age of consent’.
The above position is supported under Section 282 of the Penal Code (which is applicable in all Northern states of Nigeria). However, Section 282 (2) (e) states that sex with a girl under 14 years of age or who is of unsound mind is rape, irrespective of whether there is consent or not. On a related but different note, rape is defined under the Violence Against Persons Prohibition Act, VAPPA, “as when a person intentionally penetrates the vagina, anus or mouth of another person with any other part of his/her body or anything else without consent.” In the same vein, Section 7 (1) of the Nigeria Sexual Offences Bill, 2015 provides that a person who commits an act which causes penetration with a child is guilty of an offence called defilement.
From the foregoing, it is obvious that the issue of rape as a crime in Nigeria is very complex and delicate. It goes beyond the general definition of a man having carnal knowledge of a woman/girl without her consent. Therefore, you will agree with me that the case in question is very complicated and needs to be handled with care and caution because some pertinent factors must be put into consideration before arriving at a conclusion.
It is instructive to draw our attention to Section 7(5) of the Nigeria Sexual Offences Bill, which provided defence for any accused person “if it is proved that the victim deceived the accused person into believing she was over the age of 18 years at the time of the alleged commission of the offence; and or that, the accused person reasonably believed that the victim was over the age of 18 years”.
At this point, the next thing to try to establish, would be if the act was done without the consent of the victim or if such consent was obtained incorrectly. This would also be very difficult to establish as a result of the fact that the incident was not immediately reported (unless the victim can prove that she was under threat not to have done so over the years). Thirdly, the long period of commission of the offence notwithstanding, perpetrator of rape can be arraigned at any time because the act is not affected by statute of limitation in our country (it cannot be statute-barred). The only problem (especially in this case and even for indecent assault committed against a child) is the burden to prove the fact in issue of the commission of the offence. It must have to be proved beyond reasonable doubt that the act was actually committed by the accused and that there was indeed penetration (for rape/defilement). So, if such crime was not reported over the years, it is doubtful if there could be a medical report or an eye witness evidence to corroborate that penetration took place.
A victim must make a formal report to the police for investigations and other necessary actions. It is advisable to ensure that all substantial evidences are in place to prove the facts in issue before charging the case to court in order for the action not to backfire. This is in view of the fact that if the accused is proved to be innocent, he can institute an action of defamation against the ‘presumed victim’ and send her to jail eventually. So, it is pertinent to look very carefully and understandingly before taking a leap.
In view of the aforesaid, you will agree with me that the issues at hand goes beyond throwing tantrums on social media or calling for the head of someone who is presumed innocent until he is proved guilty and convicted by a court of competent jurisdiction. So, my concerns are: Why then are we quick to pass ‘malicious and unjustifiable judgments‘ on social media? Why is it that some of us do not apply wisdom before flooding the social media with sentimentally biased posts? What is the rationale for taking laws into our hands in the cause of fighting for justice? Why embarking on protest to molest members of the church who were exercising their freedom of thought, conscience and religion, and freedom of association as provided under sections 38 and 40, respectively, of the 1999 Constitution of the country?
We should remember that the parties involved are citizens of this country who should be protected by the laws of the land. So, how reasonable and sensible is it for us to want to protect one person‘s right by trampling on that of another or others? It is very imperative to always allow the legal process to be conducted in a proper manner so as not to prejudice the accused.
We should desist from actions and reactions that are capable of causing lawlessness in the polity where those that have the clout, popularity and wherewithal to organise nauseating protests will always have their way in getting ‘jankara redress or jungle justice‘.
If we are not careful in handling the act of rape, we can plunge the country into a state where every sexual intercourse is turned into rape for ‘fraudulent gains‘ and, or ‘act of vindictiveness.‘
It is time we desist from stigmatising victims of rape so that they will be encouraged to always promptly report such incidents to the relevant security agencies for appropriate actions. This will also forestall any lacuna that could jeopardise the dispensation of justice by the victim’s resolve to ‘cover her shame‘ rather than doing the needful.
Oise-Oghede, a public policy analyst, wrote from Lagos.