Rape under Nigeria law

In plain language, in Nigeria, a person has committed rape when he has sexual relations (carnal knowledge) with a woman against her will; or

a) without her consent or,
b) while putting her in fear of death or hurt or,
c) misrepresenting as the husband of the woman or,
d) having carnal knowledge of a girl under 14 years, with or without her consent or,
e) having carnal knowledge of a girl with unsound mind. See Section 357 and 358 of the Criminal Code Cap “C38”, Laws of the Federation, 2004

It is now settled that in legal parlance, 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 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, is guilty of the offence of rape. See Section 357 of the Criminal Code.

The important and essential act of the offence of rape, is penetration. It is also settled that sexual interference, is deemed complete, upon proof of penetration of the P into the V .

“Emission”, is not a necessary requirement. It has however, been held, that any, even the slightest penetration, will be sufficient to constitute the act of sexual intercourse. This is why, even where penetration was proved, but not of such a depth as to injure the hymen, it has been held to be sufficient to constitute the crime of rape. See R. v. Alien 9 C & P. 31.

Thus, proof of the rupture of the hymen is unnecessary, to establish the offence of rape. See the case of/?, v. Hushes 22 Mood 190.

Thus , it will be a foolish argument for a man to come to our court and argue that he didn’t enjoy it . He cannot also successfully argue that he didn’t ejaculate. Those arguments cannot help him

However, if a girl accused a man of rape, there is need for evidence to support the rape especially corroboration. Did another person witness the rape? Who saw when the man commits the rape? Was the girl injured? Did she struggle with the man? Did the man tear the girl’s cloth particularly her underwear? Was she examined by a medical doctor immediately after the rape? Some of these points are important to proof rape. A mere allegation by a woman that a man raped her is not enough unless there is other evidence to support the case

Although corroboration is desirable, it is settled that whether a particular evidence, can be corroboration, is for the trial Judge to decide. See the case of Reekie v. The Queen (1954) 14 WACA 501 (a), 502 where the following appear, inter alia:

In the cases of a sexual character it is eminently desirable that the evidence of the complainant should be strengthened by other evidence implicating the accused person in some material particular. It is true that there is nothing in law to prevent the Court from convicting on the corroborated evidence of the complainant, but it is an established rule that the presiding Judge must direct himself and the assessors in such a case on the desirability of there being corroboration of the complainant’s evidence”

A corroborative evidence, must confirm in some material particulars that:

“(a) Sexual intercourse has taken place, and

(b) that it took place without the consent of the woman or girl, and

See also the English case of James v. R. (1971) 55 C.A.R. 299 @ 302 (P.C.) – per Viscount Dilhorne.

In Akpanefe v. The State (1969) 1 All NLR 420, it was held that by section 178(5) of the Evidence Act, the court cannot convict an accused on a charge of rape without corroboration, and in this regard an early report of the commission of the offence is not tantamount to corroboration. Similarly, in Sambo v The State (1993) 6 NWLR(Pt. 300) 399, this court held in 1993 that it is the law that before the prosecution can secure conviction for the offence of rape, the evidence of the prosecutrix {the victim of the rape) must be corroborated in some material particular that sexual intercourse did take place and that it was without her consent. It was also held that a piece of evidence offered as corroboration for the offence of rape must be (a) cogent, compelling, and unequivocal as to show without more that the accused committed the offence charged; (b) an independent evidence which connects the accused with the offence charged; and (c) evidence that implicates the accused in the commission of the offence charged. See also Upahar v. State (2003) 6 NWLR (Pt. 816) 230.

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In Iko v. The State (2001) 14 NWLR (Pt. 732) 221 in 2001, eight years after the decision in Sambo it was held that it is not the rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. The proper direction is that it is not safe to convict on the uncorroborated evidence of the prosecutrix. The court may, after paying due attention to the warning, nevertheless convict the -accused person if it is satisfied with the truth of her evidence. This court also held that the fact that the prosecutrix says that an accused inserted his penis into her vagina is not ipso facto sufficient proof of penetration in the absence of corroboration.

Oludotun Ogunbayo v The State, SC. 272/2005, A Man was charged to court for rape. The trial court convicted him. He appealed to Court of Appeal and then to the Supreme Court, where the Apex court finally sent him to prison.

The case for the prosecution is that on 23^r December, 1987, while PW1 – the prosecrutix, was stooling in their own garden toilet, the Appellant surprisingly, opened the door of the said toilet and rained slaps on her face. He then dragged her from the said toilet, through the open boundary/fence of the Appellant’s house and their own house where the PW1 was living. The P.W.I swore that she was struggling with the Appellant, but she was overpowered by the Appellant, She shouted in the process of her being so dragged. The Appellant dragged her into a room where he undressed by removing his trousers and floored her on the bare floor of the said room and forcefully had carnal knowledge of her i.e. sexual intercourse with her after forcefully removing her pants. That it was in the process of being dragged on the ground, that her dress – Exhibit “B”, was/became smeared with mud dirt. That after the act of having sexual intercourse with her, that the Appellant warned her that if she continued shouting for help, he would open the room door and expose her nakedness to the world or household so as to shame her.

That shortly thereafter, one of her sisters by name Yemisi, came to knock on the door of the said room and told her that her father wanted to see her. That when she got up from the floor and came out of the room reeling with pains, she came face to face, with her father who was coming in her direction. She there and then, reported the entire incident to him of how the Appellant forcefully had sexual intercourse with her and that her father enquired from her, the whereabout of the Appellant. She took the father to the said room where the Appellant was. That at the sight of her father, the Appellant bolted away or fled. That her father beat her up and took her to the police station where he reported the ugly incident of the forcible sexual intercourse with her by the Appellant. She identified the dresses – (Buba and native trousers) worn by the Appellant at the time of the incident, which were tendered and marked Exhibits A and B respectively.

The Appellant who claimed to be an Actor or Dramatist, denied the allegation or charge and claimed that the PW1, had been his girl friend for eight (8) months before the date of the incident. That he had never had any sexual intercourse with the PW1. That PW1 visited him about 3.15 p.m. on the day in question to solicit for his assistance to find out from her school teacher, whether she had indeed failed in her examination which result was being expected. That while in the bathroom, he heard the voice of the PW2 – the father of the PW1 asking about his (Appellant’s) whereabout. That PW2 met him in the bathroom in company of some others and gave him “unexpected” slaps and then, ordered his drivers (two of whom he knew very well) to beat him up. That he was thoroughly beaten up by PW2 and the five (.5) drivers. That they tore his dress – Exhibit K. That he enquired from the PW2 why he chose to beat him up assisted by his drivers. That some neighbours came and enquired from PW2 why he was being beaten. That 2^nd PW stated that he had no moral right to befriend his daughter Kemi since he was poor when the likes of Oba Oyebade Lipede’s sons who are rich and eligible, have/had not dared. That he succeeded to escape and went to his father’s house at Ijemo Agbadu to explain what happened to him in the hands of PW2 to his brother who lives there. That his said brother, treated him for his pains and advised him to lodge a report with the Police of the incident at the Police Station which he did – accusing the PW2 of assault. That a police corporal was assigned to him to go to the house of PW2 to invite him to the police station, but that they did not meet him in his house. That the only time he was naked was on 23^rd December, 1987, when he struggled to escape from the clutches of the PW2 and his five (5) drivers after they had beaten him up and tore the dress he wore during the said beating. He called two (2) witnesses which did not include his said brother and some of the said neighbours.

The man was convicted

However, if a rapist throws a girl to the ground and was struggling with her and have not penetrated her and a man came from behind and hit the rapist and he sprang up on his feet and ran away, rape has not been completed . He has not completed penetration. Thus, without penetration, there is no rape. That will be a mere assault

It is trite that in a charge of rape or unlawful carnal knowledge of a female without her consent, the prosecution has a bounded duty to prove the following ingredients:

that the accused had sexual intercourse with the prosecutrix; woman

that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit, or impersonation;

that the prosecutrix was not the wife of the accused;

that the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not;

that there was penetration.

Consent is very important in the case of rape. If a man deceives a woman and she gives her consent , that will amount to rape. If a man put alcohol and she falls asleep and the man eat the fruit without the consent of the girl, rape has been completed. If he threatens to harm or kill the girl and based on that threat the girl gives in, rape has been completed

Finally, the only way for a man to succeed in a case of rape is if he can prove that the woman gave her consent freely. However, Law is an ass. Some technicality can help the man. In one case in court, a girl had accused a man of rape. When the case came to court, the girl under cross Examination was asked: Do you know that you are a prostitute? And the girl answered. He is my boyfriend, I m not a prostitute. This is how the case of rape failed.

Respect the Law. A woman should be allowed to give her consent

Nnamani Ogbonna

Ogbonna is an Abuja based Legal practitioner, Nnamani.ogbonna@yahoo.com, 08068599914