“My guy, the way this rape issue is going on in this country makes me scared. It’s almost every day I read about it online. It’s like one needs to be careful with ladies these days. Even one’s girlfriend, one has to be careful because it seems every act of sex is termed rape these days”.
The above is becoming the dilemma young guys are having in recent times and it seems that many people do not know what rape is by law and I think everyone must know what rape is.
Rape is an offence that is widely covered by a couple of laws in Nigeria and some of the laws will be considered below.
The Criminal Code(generally used in the Southern part of Nigeria, though most states have their own Criminal Code) by Section 357 defines rape as
Any person who has unlawful carnal knowledge (sexual intercourse) of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or using threats or intimidation of any kind, or by fear of harm, or using false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by impersonating her husband is guilty of an offence which is called rape.
Also, the Penal Code (generally used in the Northern part of Nigeria, though most northern states have their own Penal Code) by Section 282 defines rape as
- A man is said to commit rape who except in the case referred to in subsection (2) of this section, has sexual intercourse with a woman in any of the following
- 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.
2. Sexual intercourse by a man with his own wife is not rape, if she has attained puberty.
In doing a brief analysis of the laws stated above, it should be noticed that both laws are very similar with little differences. The main point is that the woman or lady MUST expressly give her CONSENT and APPROVAL in CLEAR TERMS before any form of sexual intercourse with such woman or lady will not be termed as rape. Also, the CONSENT AND APPROVAL must be out of her FREE WILL to have sexual intercourse with the man and not because she is FORCED or AFRAID of any danger, hurt, harm or death the man can cause if she refuses consent or approval or because she gave consent because she is THREATENED or INTIMIDATED by anything. Also any sexual intercourse with a married woman who gave consent because the man IMPERSONATED her husband and she BELIEVES the man to be her husband will be termed as rape.
Another very important aspect of rape is the issue of PENETRATION in the case of Ogunbayo V. State, the Supreme Court stated among other things that;
“The important and essential ingredient of the offence of rape is penetration. Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. Emission is not a necessary requirement. Any or event of the slightest penetration will be sufficient to constitute the act of intercourse. Thus, where penetration is proved, but not of such depth as to injure the hymen, it will be sufficient to constitute the crime of rape. Therefore, proof of the rupture of the hymen is unnecessary to establish the offence of rape.”
The same as above was said in the cases of Iko V. State, Sunday Jegede V, State, Okoyomon V. State among others.
The point about penetration is that, there must be the insertion of the Penis into the woman’s or girl’s vagina no matter how little or slight even if it is only the shaft or the tip of the penis. It should be noted that to constitute rape, it is the penetration of the penis only and not any other thing or object whatsoever.
You may wonder if a woman or lady can withdraw consent even during the act of intercourse. The answer is YES
In any situation where a woman or lady withdraws consent or approval during sexual intercourse, even if it was granted before the act, it is expected that the man withdraws his penis immediately as further sexual intercourse after the withdrawal of consent will amount to rape.
It will not be surprising to have a question like is it possible for a husband to rape his wife. Considering the laws stated above, it may be impossible for a husband to rape his wife in the Northern part of Nigeria considering the provision of section 282 of the Penal Code subsection ii.
It is however possible for a husband to rape his wife in the Southern part of Nigeria as the law did not say anything about sexual intercourse between husband and wife unlike the penal code. It should however be noted that proving that will be very difficult.
In conclusion, the punishment for rape under the above-stated laws is life imprisonment. Therefore, men should be very careful and get the express consent and or approval of a woman or lady before having sexual intercourse with the woman. There is no implied consent the consent has to be express. If possible, ask the lady if she wants and is ready to engage in sexual intercourse with you and she must answer in the positive clearly before the act start at all. Also as said above just inserting the tip of the penis is very enough to amount to rape if it is done without the consent of the lady.
SAY NO TO RAPE!!!
Eniola Onanuga Esq (Olojumeta)
General Legal Practice
08081252982
OG Lawyer 