Answers To All Questions On Rape

1.    What is rape?

Simply put, rape may be defined as sexual intercourse between a man and a woman or a girl against the will or consent of the female partner. Going by the provision of law , rape is defined under section 357 of the Criminal Code which applies to the Southern part of Nigeria as:

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, or in the case of a married woman, by personating her husband is guilty of an offence which is called rape.

In the Northern part of Nigeria, it is defined under section 282 of the Penal Code as:

(1)    A man is said to commit rape who … has sexual intercourse with a woman in any of the following circumstances:- (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) 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 the man to whom she is or believes herself to be lawfully married; (e) 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 to puberty.
The two definitions above show that in Nigeria, rape can only be committed by a man against a woman and not vice versa. In other climes, this is not the case because it has been recognised that a man may also be a victim of rape and it may be perpetrated by any person, including a woman. For example, in the US , the Department of Justice defines rape as:
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.
In the UK , under section 1 of the Sexual Offences Act (2003), it is defined as:
(1) A person (A) commits an offence if —
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents…
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

2.    Upon being raped, what should a victim do?

A victim of rape must first proceed to a nearby Police Station to lodge a complaint. A victim must not change her dress, must not wash or shower after the incident and must not remove anything from the scene of crime because doing so may negatively affect pieces of evidence that the Police may need to hold the perpetrator accountable. Usually, it is the Police that will take the victim to a hospital for medical examination. It is advisable that medical examination should be carried out as soon as possible, preferably on the day of the incident.

3.    If the Police refuse to act after a report of rape has been made to them, what can a victim do?

A victim should write a petition to the Commissioner of Police in that State, giving details of the officers who attend to her on the day her complaint is lodged, the name of the Police Station and other necessary information. If this step does not produce a desired result, she may contact a lawyer. There are equally NGOs  that provide legal assistance and support to rape victims.
4.    What is consent?

It refers to permission or freedom and capacity to make a choice on whether to have sex or not. When a woman says “no” to sex, her “no” should be taken as “no”.

5.    Can consent be withdrawn or given in the middle of a sexual intercourse?

It is possible that a woman who gives her consent to a sexual intercourse at the beginning may later change her mind in the course of the “act” and it is also possible that a woman who does not give her consent at the beginning may later decide to consent to it. Can it be said that there is rape in any of the situations? Under the Nigerian law, it is doubtful if rape can be successfully proved in any of the two cases because “consent” is not clearly defined in the Criminal or Penal Code. However, under the UK’s Sexual Offences Act, consent is extensively defined and it amounts to rape, if a man continues sexual intercourse after a woman withdraws her consent or starts a sexual intercourse where there is no consent, not minding the fact that consent is given midway .

6.    Is rape committed when a sexual intercourse takes place with a sleeping or drunken woman?

Yes. It is a case of rape because it means that there is no consent.

7.    What is the punishment  for rape?

Nigeria – life imprisonment (maximum but it may be less)
India-       life imprisonment or death
France-    from 15 years’ imprisonment to death
US-            life imprisonment
UK-            life imprisonment
Saudi Arabia- death
North Korea- death
Israel-         16 years’ imprisonment
China-   death
Egypt-   death.

8.    What is the punishment for making a false allegation of rape against any man?

There is no criminal penalty for making a false allegation of rape against a man in Nigeria. However, if after trial, a suspected rapist is found to be innocent of the allegation, he may bring a civil action (technically called malicious prosecution) to claim for damages. An action for defamation, after trial, is, on the other hand, not likely to succeed.

9.    How can one establish a case of rape in court?

In a case of rape, the prosecutor must be able to prove the following elements beyond reasonable doubt:
1.    that an accused person has sexual intercourse with a woman against her will;
2.    that the act of sexual intercourse is proved by penetration of the accused person’s penis into the woman’s vagina;
3.    that the victim is not his wife.

10.    Can rape be proved where a victim does not sustain any physical injury or in the case of a virgin, where her virginity is still intact?

It is possible to prove rape in any of these situations, provided that there is evidence to establish penetration and lack of consent. Sustaining physical injury is not compulsory, though it may help a case better if present. Rape is complete on penetration, even if the hymen is still intact.

11.    Is it compulsory to have medical evidence in proving a case of rape?

It is good to have medical evidence in establishing rape but it is not compulsory. A case of rape may be convincingly proved, without medical evidence, where the accused person makes confessional statement or there is an eye witness.

12.    Is a medical report obtained from a private hospital acceptable in court?

Yes. It is acceptable. However, in practice, it is medical reports from government-owned hospitals that are usually tendered in court.

13.    What are the defences that are available to a person accused of committing rape?

a.    Presence of consent: if a person standing trial for rape is able to prove that the victim gives her consent to have sexual intercourse, no offence is committed and the perpetrator will be discharged and acquitted.
b.    Lack of penetration: if an accused person proves that there was no penetration, he may go scot-free.
c.    Marital relationship: if he is able to prove that the victim is his wife, he will go scot-free.
d.    Insanity- no offence is committed, if a madman rapes a woman.

14.    Is a rape suspect entitled to be defended by a lawyer at the expense of the State/Government?

No. A rape suspect may obtain the services of a lawyer of his choice but if he is financially handicapped to secure one, the State is not obligated to provide him a legal representative free of charge, unlike in the case of persons standing trial for murder or armed robbery . A rape suspect may as well decide to represent himself without a lawyer.

15.    Does a rape victim need to have her own lawyer?

No. Once a rape case is reported to the Police, the latter will commence investigation; take statements of the victim and that of the perpetrator and other witnesses, if any. The Police may also procure medical report and if, in their opinion, there is sufficient evidence in respect of the case, forward all the pieces of evidence compiled in a case file to the Ministry of Justice which will, in turn, ensure that the perpetrator is charged to court and prosecuted accordingly. A lawyer, from the Ministry, will be a legal representative of the State as well as the victim. Rape, being a criminal case, is regarded as an offence against the State and this is why the victim will not have to pay any money to the Government lawyer for him or her to prosecute the perpetrator. However, any victim who wishes may decide to secure the services of an independent lawyer who will also attend court each time the case comes up. Such a lawyer is called watching brief counsel because he or she can only be seen but cannot be heard.

16.    Which court can try perpetrators of rape in Nigeria?

Only State High Courts can try perpetrators of rape in Nigeria because it is a serious offence. It is beyond the power of a Magistrate’s Court to handle, unless it is temporarily pending before such court within which it will be properly brought before a High Court.

17.    Does a rape victim have the power to withdraw the case against a perpetrator in court?

Technically and legally speaking, no! Once a case of rape is in court, only the Attorney-General can discontinue the case. Rape is a felony ; not being a minor offence, it is beyond the power of a victim to withdraw or discontinue it. In fact, it is an offence  in itself for a rape victim to agree to discontinue or withdraw the case and the punishment prescribed by law for doing so is 7 years’ imprisonment. However, in practice, this position of law has been seen to be compromised in some cases. Also, in practice, a case of rape may be struck out by a court, if a victim refuses to attend court for the purpose of giving evidence.

18.    If witnesses refuse to attend court to give evidence, what can a victim do?

A victim does not have much to do in this regard. The prosecutor knows the appropriate application to make to the court in order to compel any uncooperative witness (es) to be in court, though the victim’s assistance may be needed in tracing the address of such witness.

19.    How can a woman contribute to her being raped?

In law, once a woman refuses to have sex with a man, it is not a defence that she has earlier consented to kissing or to have willingly entered the house of the rapist.

20.    How many rape cases have been successfully concluded in Nigeria?

There is no reliable statistics  on the number of rape cases that have ever been concluded in the Nigerian courts but judging from cases reported in the law reports, many cases have been successfully concluded.
But experience has also shown that a lot of rape cases have gone unreported and even where they are reported, it is usually difficult to get witnesses because victims are often ashamed of coming out to testify in court, especially adult victims. Negative attitude and insensitive investigation methods of the law enforcement agents, e.g. the Police, are also a source of discouragement to rape victims.

21.    Is a man accused of rape entitled to be released on bail?

A man accused of rape is not entitled to be released on bail by the Police. Although rape is a bailable offence, the bail can only be granted by a State High Court. Upon arrest by the Police, he cannot be detained beyond 48 hours. He must be taken before a court of law, usually a Magistrate’s Court which will order the detention of the suspect in prison custody, pending his proper arraignment in a State High Court. While the suspect is in the prison custody, a bail application may be filed on his behalf before a State High Court. However, in some Nigerian States, a Magistrate’s Court may grant bail to a rape suspect.

22.    Can a man be raped?

Under the Nigerian law, a man cannot be a victim of rape. However, in places like the UK, a man may be raped (i.e. either by anal or oral sex) by another man. But it is still impossible to sustain a case of rape against a woman in a situation where the latter forces a man to have sexual intercourse with her. This is simply because there is no definition of rape which captures such occurrence. Even the American Department of Justice’s definition, as wide as it is, does not cover where real sexual intercourse is perpetrated by a woman against a man. Under the American definition, a woman may be charged with rape, if the woman penetrates a man’s anus either with her fingers or any object. Under the UK’s law, however, a woman cannot be a perpetrator of rape because rape can only be perpetrated with the use of a male penis.

23.    Can a woman be charged for raping a woman or man?

No. A woman cannot be charged with rape in Nigeria and many other places. However, a woman may be charged with rape, if she aids  a man in any manner to forcefully have sexual intercourse with another woman.

24.    Can a husband be charged for raping his wife?

Under the Nigerian law, a husband cannot be charged for raping his wife . Contrastingly, in the UK and many other European countries, it amounts to rape if a man forcefully has sex with his wife.

25.    Can a man be charged for raping his daughter?

Yes. Incest is not an offence under the Nigerian law; so, he can only be charged with rape.

To Be Continued!