Recently, I had a discourse with a friend who is a member of the Nigerian Police Force. He was pointing out to me how unfair and lopsided the definition of rape under our Nigerian law is. This was something I had noticed many years ago while in the University but I didn’t really give it serious thought. A recent news report made me look into the issue a bit more seriously.

It was reported by Daily Post on the 17th of July, 2012 that in Ogbadibo Local Government Area of Benue State, a man was allegedly raped to death in the early hours of Tuesday by his six wives. He had returned late that night from a beer parlour where he usually hung out and headed to the room of his youngest wife to have sex with her when his other wives, armed with sticks and knives demanded that he sleep with all of them. When he resisted, he was overpowered and each wife took turns with him until he passed on to the afterlife.

Under Nigerian Law, while it would be accurate to charge the wives of the man for manslaughter, it would be virtually impossible to charge them for rape. Here is why.

Section 357 of the Criminal Code Act, CAP 77, LFN 1990 defines rape thus:

“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 false threats or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act, or in case of a married woman, by personating her husband is guilty of an offence called rape”.

The Penal Code defines rapes as follows:

“A man can be held guilty of rape if he has sexual intercourse with a woman without her consent, or with her consent, if consent was unlawfully obtained”.

From the above provision, it becomes quite glaring that under Nigerian law, only a man is capable of committing the crime of rape. Section 357 of Criminal Code clear states that;

“…any person who has unlawful carnal knowledge of a woman or girl…”

Under the latin phrase in statutory construction, Expressio Unius Est Exclusion Alterius, the express mention of one person, thing or consequence implies the exclusion of all others. A variation of this principle of statutory interpretation is Expressium Facit Cessare Tacitum ; what is expressed puts an end to what is implied. Simply put, where a statute or law by its terms is expressly limited to certain matters or persons, an interpretation or construction can not be extended to others.

This principle presupposes that the makers of the law would not have made specific enumerations in a law or statute if the intention was not to restrict its meaning and confine its interpretation to those terms that were expressly mentioned. Thus, the absence of the mention women as possible perpetrators of rape, totally excludes them from ever committing such an offence.

Rape being a criminal offence in the Code is consistent with the general principles stated in Section 2(4) of the Code. Principles of evidence and judicial precedents provides that the prosecution must prove the concurrence of both physical (actus reus) and mental (mens rea) elements before it can secure a conviction. The burden of proof lies squarely on the shoulders of the prosecution and it is to make its case beyond reasonable doubt.

Proof of rape majorly relates to the physical element of the crime. Section 6 of the Code defines unlawful carnal knowledge as;

“…carnal connection which takes place otherwise than between husband and wife.”

From this definition, all other forms of carnal connection are deemed unlawful in the eyes of law, though there’s an absence of criminal liability except when the woman did not validly consent to it as valid consent is the hallmark of the offence of rape.

Furthermore, proof of unlawful carnal knowledge is the material element of rape and what amounts to unlawful carnal knowledge is explained in Section 6 of the Code thus;

“When the term “carnal knowledge” or the term “carnal connection” is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration.”

Thus, before penetration is achieved, proof of unlawful carnal knowledge is impossible. It has been held in several case laws that a degree of penetration so slight and light that it didn’t cause any laceration or injury of the hymen would be sufficient in law for the offence of rape to be complete. Even if the victim is “virgo intacta” or yet to be disvirgined, the court from surrounding circumstances that satisfies it will convict such accused person. See R v. Russen (1891) 2 QB and Jegede v. The State (2001) FWLR (Pt. 66) 72 at 73.

Furthermore, the requirement of penetration as proof of “carnal knowledge” or “carnal connection” has also made it practically impossible for a woman to rape a man since a woman possesses no such bodily appendage that may allow for penetration.

Flowing from the above, there is no doubt that the intention of the draftsmen of the Code was to prescribe a stiff penalty for rape. Under Section 358 of the Code, it is punishable with life imprisonment. Even an attempt to commit it is also an offence punishable by a term of 14 years imprisonment, with or without whipping.

However, the Code Criminal Code Act was first established in 1916; a time when rape was considered as an offence committed by males against females and they totally overlooked a situation where women rape men. Today, the world has changed so drastically that the current definition of rape under our laws are restrictive and are in dire need of revision.

The definition of rape varies in different parts of the world and at different times in history. The United Nations (UN) defines it as;

“Sexual intercourse without valid consent.”

The World Health Organization (WHO) in 2002 defined it as;

“Physically forced or otherwise coerced penetration – even if slight – of the vulva or anus, using a penis, other body parts or an object.”

Early this year, the Federal Bureau of Investigation (FBI), for their annual Uniform Crime Reports, changed their definition from “The carnal knowledge of a female forcibly and against her will.” to,

“The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

The definition, which had remained unchanged since 1927, was considered outdated and narrow. The updated definition includes any gender of victim and perpetrator, not just women being raped by men. It recognizes that rape with an object can be as traumatic as penile/vaginal rape and also includes instances in which the victim is unable to give consent because of temporary or permanent mental or physical incapacity, and recognizes that a victim can be incapacitated and thus unable to consent because of ingestion of drugs or alcohol. However, the definition does not change federal or state criminal codes or impact charging and prosecution on the federal, state or local level; it rather means that rape will be more accurately reported nationwide.

Incidences of other kinds of rape have become more popular in recent times. Several studies argue that male-male (sodomy) rape, as well as female-female (lesbian) rape, might be the most common and least-reported forms of rape, especially in prisons, with some studies suggesting such rapes are substantially more common than male-female rapes in the general population.

Research from the UK suggests that almost 3% of men reported a non-consensual sexual experience as adults and over 5% of men reported sexual abuse as a child. This does not take into account the possibility of exaggeration or false reports nor of under-reporting. Recognition of male-male rape in law has historically been limited; the first successful prosecution for attempted male-male rape in the UK was not until 1995.

Male-male rape has historically been shrouded in secrecy due to the stigma attached to it. According to psychologist Dr Sarah Crome, fewer than one in ten male-male rapes are reported. There is a serious lack of services and support for such victims and legal systems are often ill-equipped to deal with this type of crime.

Contrary to previous beliefs, women can commit an act of rape with force or deception to make a man engage in a non-consensual penetrative or non-penetrative sexual act. Several widely publicized cases of female-on-male rape in the United States involved school teachers raping their underage students. Penetration of an adult man by a woman is possible through forcible stimulation of external male genitalia or the anus, or by forced penetration of the anus with the use of strap-ons, dildos, or other foreign object. Rape of a man by a woman could also occur when limited sexual activities are agreed upon and a man’s penis is placed in a woman in violation of the limits that had been set.

It has been reported in Zimbabwe that gangs of pretty women have been raping men to harvest their sperm for use in traditional luck-enhancing “juju” rituals. According to local media reports, victims of the freeway femme fatales are drugged or subdued at gun or knife-point; one man was even compelled to perform at ‘snake-point’ when his rapists brandished a live snake. The male victims are then given a sexual stimulant and forced to have sex continually, occasionally unprotected, before being dumped on the side of the road.

In November 2011, three sisters and one of their boyfriends were charged in a Harare court for attacking male hitchhikers and collecting their semen. They faced 17 counts of aggravated indecent assault, as a woman raping a man is not a criminal offense in the country.

There is no doubt now that the phenomenon of rape has become inclusive to both genders. The various sections dealing with rape in our Criminal Code Act should be revised to include female-male rape, male-male rape, female-female rape and more importantly, spousal rape. The provision of Section 357 of the Code is discriminatory against men in the light of the recent misfortune in Benue State. This should engender the need for the provisions of our various laws to be revised and updated to be in touch with modern day realities.


Follow on twitter @saymalcolm