Pelumi Olajengbesi Esq.
“Another thing you should know is that if a married man sleeps with a young lady with her consent but obtained her consent by giving false information about himself, that he is not married, the sexual intercourse amounts to rape…”
June 30, 2019.
In the Nigeria Legal System, rape is a condemnable offence both in the Criminal Code and under the Penal Code. The severity of the offence of rape cannot be over emphasized. Little wonder why a lot of authorities have advocated strict punishments for the offence.
Victims of rape are made to suffer unquantifiable anguish, some are diagnosed with post-traumatic stress disorder, dissociation from reality, depersonalization, etc. Most of them endure physical violence, avoid social life, get infected with sexually transmitted infections, encounter serious difficulty in remembering events, recall moments of sexual assaults and most times suffer unwanted pregnancy amongst all other ills.
Section 357 of the Criminal Code identifies rape as having 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 act, or, in the case of a married woman, by personating her husband.
Under Section 282 of the Penal Code:
A man is said to commit rape when he has sexual intercourse with a woman in the following circumstances:
1.Against her will.
2.Without her consent.
3.With her consent when her consent has been obtained by putting her in fear of death or of hurt.
4.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
5.With or without her consent when she is under 14 years of age or of unsound mind.
This goes to say that even if a married man sleeps with a young lady with her consent but obtained her consent by giving false information about himself, that he is not married, the sexual intercourse amounts to rape.
The summary basic elements that must be established in a rape trial are unlawful carnal knowledge of a woman or girl without consent, or with her consent, where it was obtained by duress, fraud or intimidation.
Our laws have placed strict punitive measures on the offence with the intention to deter persons from ever considering such delinquent acts. The Criminal code and Penal code provides for punishments raging from 14 years imprisonment with fine to life imprisonment with caning. These punitive measures are deterent driven but the act has continued to occur regardless of the punishment by unscrupulous fellow.
It suffices therefore to say that the difference lies on the jurisdiction where the offence was committed. The Federal Capital Territory and Lagos State also have their own peculiar laws that deals with Rape.
Also, it is important to note that for the offence of rape to be complete, there must be penetration, no matter how small it is. Rape can therefore not be established without proof of penetration. Significantly, the male reproductive organ must have crossed from the Labia Majora to the Labia Minora.
In establishing the offence of rape, there must be corroborative evidence which usually comes from eyewitnesses’ account or medical evidences. It is Law that such eye witnesses must have witnessed the actual penetration of the victim’s vagina. How this is possible, practically speaking, at all times, defeats the imagination.
More often than not, sex offenders will not undertake the abominable act in a place easily accessible to members of the public and there is always the possibility that before any eyewitness finally reaches a rape crime scene, the offender would have disengaged from the victim which ultimately means that rape as a criminal offence cannot be established but a lesser offence of attempted rape can be easily established.
However, medical evidences have helped to ameliorate the challenges of eyewitnesses in corroborating evidence of rape but with its own challenges and uncertainties.
In the case of Okafor v. The State 1 All N. R 420, the Supreme Court held that in a case of rape and attempted rape contrary to Section 282(1) (e), there was no evidence to corroborate the evidence of the complainant as, at most, the medical report confirmed the Complainant’s story that someone had sexual intercourse with her but did not corroborate in any way her story that it was the accused person who had done so.
On the issue of time limitation, both the Criminal Code and the Penal Code are silent on the issue of time within which to institute an action for Rape. It is also worthy to note that criminal offences are not subject to the statute of limitation.
It is my humble opinion that placing time limitation on the offence of rape would encourage offenders to commit the offence, escape and only return after time has lapsed.
Conclusively, the offence of Rape is highly reprehensible and punishable under our laws. Victims are encouraged to report the offence to the nearest Police station immediately and undergo medical examinations to obtain medical reports which would serve as evidence.
However, Nigeria must evolve a more scientific approach to investigate rape allegations to prove the offence of rape as lack of human and material resources to medically investigate and reach conclusive findings in a rape case leaves a sour taste in the mouth.
Pelumi Olajengbesi Esq., is a Public Interests Lawyer and the Principal Partner at Pelumi Olajengbesi & Co. Law Corridor, Abuja.