- Introduction
In her book titled "The Purity Myth: How America's obsession with Virginity is Hurting Young Women", Jessica Valenti engages the trivialization of rape in society and how, typically, the victim tends to be blamed for playing a contributory role in her dehumanization and most excruciating experience. She posits as follows: "Now, should we treat women as independent agents, responsible for themselves? Of course. But being responsible has nothing to do with being raped. Women don't get raped because they were drinking or took drugs. Women do not get raped because they weren't careful enough. Women get raped because someone raped them."
The American experience on rape issues is a prototype of societal sentiment in Africa, perhaps even direr, especially in Nigeria. The notion that, somehow, when a person gets raped in Nigeria, (statistically, usually a woman) the victim must share in the causative factors leading up to the despicable conduct of their violators, has, historically, been partially responsible for the general reluctance of survivors to step out of their closets to report the crime. This should not be the case in any developing society that seeks to enthrone a framework of accountability for the actions of adult members of society.
As in America, rape is grossly underreported in Nigeria owing to fear of reprisal, victim shaming and as alluded to the above, the blame – allocation to survivors. Nonetheless, on June 15, 2020, at a press conference with State House correspondents at State House, Abuja, the Inspector General of Police in Nigeria, reported that 717 rape cases were recorded between January and May 2020. He stated further that 799 suspects had so far been arrested, while 63 cases had been conclusively investigated and charged to court, with 52 cases still under investigation.1
The advent of the Covid 19 pandemic has led the Federal Government of Nigeria to impose a bouquet of public health measures including social/physical distancing protocols, enhanced personal hygiene practices and varying levels of lockdowns across the country. Disturbingly, since then, there has been an increase in reported cases of sexually-related offences which include acts of sexual violence, statutory rape, defilement, sexual abuse and harassment. However, this article is focused primarily on the criminal behavior of rape and defilement.
In Nigeria, there are several laws in place regulating sexual conduct and related offences. These are codified mainly in the Criminal Code, Penal Code, Childs Rights Act and Violence against Persons (Prohibition) Act. As we know, the existence of these various legislations has not resulted in curbing the incidence of these sexual offences as there still exists an increasing number of reported cases which, it would seem, have spiked significantly during this pandemic. For instance, the Lagos State Government-run Domestic and Gender Violence Response Team ("DGVRT") recently reported that it had been besieged with increased reports of sexual violence since the start of the lockdown in March, 2020. In fact, the DGVRT reported that before the lockdown, an average of 8 cases was being received daily but that since the lockdown the number had increased to about 13 new cases daily. The DGVRT also stated that the team had received 390 reports in March, 2020 alone which signified a 30 percent rise in cases of sexual violence.2
A number of reasons have been adduced or are responsible for this surge, details of which will be considered in the course of this piece. It bears mentioning at this juncture that governments with high incidence of rape cases need to look beyond just legislation to fix the problem; they would also need to consider deep cultural and social dysfunctions within their societies that either encourage sexual violence or do not prevent it. The continuing menace of sexually related offences in our society exacerbated by the recent surge in such cases is the primary motivation for this article. Victims and survivors have had to bear the unusual burden of being presumed guilty until proven honest, when that burden should ordinarily reside with an assailant. This article helps to illuminate, inter alia, some of the more pressing issues relating to rape and defilement in our society and how survivors can be assisted to heal, recover and reintegrate into society as valuable contributors and not as damaged or bitter stakeholders.
- What is rape?
Rape is defined as the unlawful carnal knowledge of a person without his or her consent, or with 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.3 When the term 'carnal knowledge' or '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.4 Therefore to prove that the offence of rape has been committed, there must have been a complete act of penetration. The offence of rape is similar to that of defilement. Defilement is, in simple terms, the unlawful carnal knowledge of minors. Statutory rape, on the other hand, is a situation where an adult has 'consensual' sexual intercourse with a person who has not attained the statutory age of consent.
- Surge in incidence of rape
The Covid 19 pandemic and the attendant lockdown order mandated individuals to stay home and most non-essential businesses to temporarily shut down. As earlier alluded to, there has been an increased incidence of rape and defilement cases during the lockdown and a number of reasons have been adduced for this state of affairs. For instance, ActionAid Nigeria reported that since the lockdown in March, 2020, it had recorded 253 cases of gender-based violence in Bauchi, Cross River, Enugu, Kebbi alone, which data only represents the number of reported cases and does not, therefore, include cases not reported5.
The European Institute for Gender Equality has identified this phenomenon as a global problem and has stated that, although women and men experience the increased gender-based violence, women and girls have, indeed, been worse hit. Consequently, the United Nations has sensitized countries across the globe regarding this development, which it attributes to forced proximity of people caused by the global lockdown. 6 Arguably, the inability of law enforcement agencies in Nigeria to devise effective strategies towards curtailing acts of violence amongst citizens has in turn resulted in the increase in cases of sexual violence which is evidenced in the nature and sheer brutality of the recently reported cases of rape and murder of girls and women, particularly in the month of May, 20207. It is pertinent to state here that even before Covid 19 existed, sexual offences in Nigeria had been a matter of growing concern, however, it seemed to have taken a turn for the worse since the advent of the pandemic. 8
- Reasons for surge and challenges associated with proof and prosecution of rape cases
The difficulty in prosecuting sexual offences in Nigeria has only worsened the rape pandemic as, in most cases, the perpetrators are allowed to walk free and emboldened to re-enact such despicable conduct on future unsuspecting victims. Some of these challenges in prosecuting sexual offences range from the reluctance of victims to report such crimes, the existence of loopholes in the relevant criminal laws relating to sexual offences, ignorance of persons on the proper procedures and channels to follow when such offences occur, the inability to prove such cases successfully when instituted, and the seeming reluctance of judicial authorities to impose the full punishment prescribed by law on convicted offenders.
The reluctance of victims of sexual offences to report cases is a major factor that has compounded the prevalence of such offences. This factor could be traced to the popular notion that a victim must have committed some contributory act (such as wearing clothes that exposed parts of their bodies, moving around late at night, visiting persons of the opposite sex alone etc.) that made him/her susceptible to that crime. The mainstreaming of this societal belief system that entails blaming the victim rather than the perpetrator, is in this writer's view, at the heart of fixing this social menace: it undermines the effectiveness of any proactive step taken to tackle the problem. The recent case of a mother beating up and blaming her 2-year-old daughter for getting raped and paying no attention to the rapist is a classic case in point.9 This discourages victims from speaking up as they reckon that their complaints would be treated with kid gloves by the Police.
Lacunas exist in our existing laws on sexual offences which militate against effectual prosecution of complaints. For instance, the offences of rape and defilement are not gender specific, however, the Criminal Act and Penal Code10, the prominent laws on sexual offences in Nigeria, both recognize females as the only gender capable of being abused sexually. These provisions make penetration of the vagina an essential element in establishing rape and allied offences. These provisions, in effect, automatically exclude from application cases of sexual abuse against males. The Criminal Code also regards a male below the age of 12 years as being incapable of having carnal knowledge.11 In the author's considered view, this provision is completely flawed and does not take into account present day realities in which male children of lower ages have been reported to be involved in such acts. Where the law does not recognize an act as an offence, how then can a victim of same obtain justice and how can such perpetrators be brought to justice?
Section 218 of the Criminal Code Act goes further to prescribe a limitation period within which such actions must be instituted. It provides for a period of 2 months within which an action must be brought after the commission of the act. The legal effect of this provision is that any action brought after the limitation period will not be sustainable in a court of law. This provision is an exception to the general rule that there is no time limit for the institution of criminal actions. Arguably, the purpose of this provision as to limitation might be to ensure that there is still reliable evidence linking an accused to the crime, however, this could be exploited by unscrupulous suspects or prosecutors who simply need to ensure that prosecution is delayed by every "legal" means available until expiry of the period limited, in order to enable suspects walk away free and prowl around town for their next victim.
Section 221 of the Criminal Code provides that anyone who has or attempts to have carnal knowledge of a girl above the age of thirteen and under the age of sixteen or a woman or girl of unsound mind is guilty of a misdemeanor and liable to imprisonment of 2 years with or without caning. This provision regards such acts as a misdemeanor as opposed to rape which it regards as a felony. It also prescribes a lesser offence for the commission of same as opposed to that of rape which is met with a punishment of life imprisonment. The section goes further to provide that the accused may rely on the defence that he believed on reasonable grounds that the girl was of or above the age of 16 years. This provision is further qualified by Section 222(c)12 which requires that for an accused to rely on this defence he must be below the age of 21 years and had not been previously charged with such offence. Just like Section 218 of the Criminal Code, it insists that such actions be instituted within 2 months.
Also, the issue of marital rape is not envisaged or even covered by Nigerian Law. Interestingly, the two dominant laws on sexual offences intentionally exclude marital rape from their definition of rape13.This is not the case in other jurisdictions such as the States in US which have criminalized marital rape since the 1990s; reason being that, whether within marriage or outside it, sex is and should always be consensual. Also, African Countries like Angola, Cameroon, Gabon and Ghana have since adopted laws that condemn and criminalize marital rape. The reluctance to criminalize this offence in Nigeria has been attributed to her traditional views of marriage, interpretations of religious doctrines and ideas about male and female sexuality. It is, thus, not difficult to appreciate why acts of sexual violence between spouses tend to be accommodated/tolerated in Nigeria, ostensibly, on the foundational belief that marriage constitutes an act of permanent consent. Sexual violence between spouses tends to be worse in cases of child marriages, where the children are forcefully and sexually abused under the guise of the marriage institution. For instance, a case was recently reported of a minor who stabbed her husband to death for forcefully attempting to rape her without her consent.14
Another area in which the law has proven to be inadequate is the lack of convergence on the legally accepted age of consent. The Child Right's Act prescribes 18 years as the age of consent and declares any act of sexual intercourse with any person below that age as unlawful and a criminal offence.15 However, not all states have domesticated that law; in fact, about 12 Nigerian states, most of which are located in the Northern part of the Country, are yet to domesticate the same. The Penal Code prescribes 14 years as the age of consent as it provides that a child below the age of 14 is incapable of giving consent.16 The Criminal Code has no specific provision on the age of consent, however, one could assume from the tenor of the Act that a person below the age of 13 is regarded as a child. There is need for harmonization of the age of consent for this purpose and for same to be operational throughout the country. This author proposes that the age of consent be no lower than 18 years, as a veritable tool for controlling sexual offenses against children, especially in cases of statutory rape.
The enactment of the Violence against Persons (Prohibition) Act, 2015, (VAPP Act) has helped to widen the scope and frontiers of sexual offences. For instance, it defines rape as the intentional penetration of the vagina, anus or mouth of another person with any part of his or her body or anything else.17 By this definition, the victims of the offences of rape and defilement are no longer restricted to females but may now include males as it should be. It also recognizes the fact that any intentional penetration of the anus and mouth and not just the vagina constitutes rape. It goes further to introduce the establishment and operation of a register for convicted sexual offenders which is to be made accessible to members of the public. The provisions of this Act shall also supersede any other provisions on similar offences in the Criminal Code, Penal Code, and Criminal Procedure Code.18 While this is an interesting introduction into our jurisprudence for name and shame purposes, it should be noted that this Act only applies to the Federal Capital Territory, Abuja and, by extension, only the High Court of the Federal Capital Territory has jurisdiction to hear and grant any application under this Act.19To their credit, similar laws have been enacted in some other states like Anambra, Ebonyi and Oyo while states like Ekiti20 and Lagos State21 already had pre-existing similar laws. It is recommended that other states of the Federation consider domesticating these principles by incorporating them in existing laws or enacting altogether new but similar legislations.
The Criminal Code, Child Rights Act and the Violence against Persons (Prohibition) Act provide for life imprisonment as the punishment for the offence of rape22. For the offence of defilement of a child, the Criminal code prescribes punishment of 14 years imprisonment. However, our courts tend to be reluctant to impose this punishment on offenders and instead opt for a reduced sentence. For instance, in Boniface Adonike v. The State23, the Appellant was convicted and sentenced to six years imprisonment with six strokes of the cane for the offence of defilement of a five- year old child even though the law upon which the Appellant was charged prescribed life imprisonment for commission of the offence24. Similarly, in the cases of Afor Lucky v. The State, Segun v. The State25and Oludotun Ogunbayo v. The State (Supra); reduced sentences were imposed. This attitude of the courts being sympathetic to the culprits rather than the victims does not serve as sufficient deterrent to would-be rapists, especially, considering how condemnable and barbaric such acts are. For many victims and survivors, they may neither obtain a sense of closure nor be able to heal psychologically, in the knowledge that their assailants only received a smack on the wrists as retribution. Our courts should be required to impose the full punishment prescribed by law as a means of signaling the strong sense of abhorrence her society feels towards such conduct.
Yet another factor contributing to this state of affairs is the unduly protracted nature of criminal proceedings in our courts and the dispute resolution mechanisms available in the land. Records show that there had been only about 65 rape convictions reported in the various law reports on sexual offences from 1973 to 201926. Also, that although 283 cases of defilement were reported in Lagos in 2011, only 10 were prosecuted and convicted.27
It is instructive to note that, typically, prosecutors find it difficult to successfully prove rape during criminal trials. This difficulty could be traced to the usually private nature of the offence and the stealth involved in consummation of the crime. Even in cases where there are witnesses to the offence, such victims are still required to prove that penetration occurred, which is no easy task. In cases where there are no witnesses or absence of medical evidence of penetration, it then revolves around the probative value that a court of law accords the evidence provided by a victim as against that of an accused person. In order to facilitate less cumbersome proof of the offences under consideration and to discharge the burden imposed by law, the following factors must be taken into consideration:
4.1 Medical examination
Victims of rape and other acts of sexual violence are encouraged to undergo medical examination immediately after the act. A medical examination will involve a simple examination of the victim by a medical practitioner to confirm the fact that indeed there was penetration or other assault of any kind. This examination is usually followed by a medical report which will be tendered in court to prove the offence. This is important because it provides evidence that the victim had been abused and states in details the extent of the abuse. The provision of a medical report provides evidence that establishes one of the most essential ingredients of a sexual offence, which is the fact that sexual intercourse occurred. This evidence must be definitive in its description of the offence as the court may be reluctant to grant a conviction where a medical report is ambiguous or vague in details.
It is important to state here that the ability to produce a medical report does not in itself provide irrefutable proof of rape; as with other evidence, same must be proved beyond reasonable doubt before a court of law. The medical practitioner who prepared the report would be called upon to give evidence and be cross-examined on it. Where it is, however, proved to be genuine, the same would constitute good and credible evidence upon which the courts may convict, especially, when it fits into the timeline of events. The procurement of DNA evidence from the victim during medical examination in cases of rape and defilement can, however, create irrefutable evidence that the offence was, indeed, committed by a Defendant where the DNA obtained from the victim is found to match that of the Defendant.
4.2 Statement to the Police.
Victims of the offence are also encouraged to file a statement with the Police immediately after the offence is committed. This statement is a narration of the details of the offence which will then be signed and dated by the victim as well as the Investigative Police Officer (IPO). Also, after a crime is reported, the IPO is expected to conduct an investigation by visiting the scene of the crime and making a report based on his findings. Details such as torn clothes, existence of semen in clothes, noticeable bruises on the victims are to be included in the report and such material evidence would be collected by the Police and kept as evidence pending when they could be tendered in court. This will amount to good and useful evidence that could be relied on by the courts in establishing the offence of rape.
4.3 Any other evidence that corroborates the evidence of the victim.
Corroboration simply means independent evidence tending to support and strengthen other evidence before the court and confirm in some material aspect that the accused committed the offence. Corroboration need not only be the testimony of a witness, it may be in the form of a medical report, testimony of a medical practitioner that examined the victim immediately after the act, a Police report from scene of crime, authentic footage from CCTV cameras or authentic video or audio files (strict compliance with section 84 Evidence Act, 2011) establishing the offence. It should be noted that the absence of the above will not in itself prevent the court from convicting 28(except where the testimony is from a child below the age of 1429); rather, its existence could make the courts more inclined to convict an accused.
Where a victim is armed with both a medical and a Police report, both linking the accused to the crime, the same may be deployed in court to prove the offence. Where an action has been instituted, the prosecution must prove beyond reasonable doubt that there was sexual intercourse between the victim and the accused (to prove this, the prosecution must establish that there was penetration), that the act of sexual intercourse was carried out without the consent of the accused person. Where the victim is a child, the prosecution must prove, in addition to the above, that the victim of the offence was a child at the time the offence was committed.30
- Recommendation.
The scourge of rape and defilement in our society isn't about to go away unless society adopts deliberate steps to understand its socio-cultural causes and what legislative and institutional reforms are required to contain and ultimately reduce it. Assailants, typically, leave their victims physically and emotionally traumatized. Some survivors are scarred for life and become psychological wrecks. Given the criminal nature of the act and the stigmatization associated with survivors, efforts towards finding sustainable solutions would require a multi-dimensional approach. I have considered and hereby propose the following action points for general application across the country.
5.1 Sex offenders' register
This is a register of all convicted sexual offenders in any given country or state as the case may be. This system enables government authorities to monitor and keep track of the activities of sex offenders including those who have completed their sentences. In some jurisdictions, convicted sexual offenders may be required to notify persons living close to or around their residential areas of the fact that they are sex offenders as a means of helping their neighbors be on guard against them.31 Child sex offenders may be restricted from living in certain residential areas including those in close proximity to schools, day cares and residential areas with a lot of under aged children. In some jurisdictions, sex offenders may be restricted from using the internet freely and from joining certain social media platforms. While, in most countries, these registers are usually only accessible by law enforcement agencies, in the United States, the registry is open and accessible to the public and can be accessed from anywhere in the world as the details are uploaded online.32 Nigeria does not have any standard sex offender registry. In fact, the only law that makes reference to the operation of a sex offender registry is the VAPP Act, which is not enforceable in all states of the Federation and even the states where it is applicable are yet to fully domesticate and operationalize same. It is hoped that the introduction of "naming" and "shaming" of sex offenders, which a sex register affords society, will help redefine the unhelpful narratives about rape victims and discourage persons with such proclivities from actually consummating such offences. A paradigm shift from victim-shaming to offender-shaming will help raise societal consciousness about the debilitating and multiplier effects of rape on victims, their families and the communities they live in.
5.2 Public Education and Enlightenment
There is need for a comprehensive sensitization program to be undertaken through both the print and electronic media, digital channels and the organization of seminars, workshops and campaigns in schools, churches, mosques and other religious gatherings, hospitals, social and cultural clubs and groups, to educate society about the major fallacies relating to sexual related issues and how they can be properly addressed. These would help change the negative narratives about sex and educate people on acceptable sexual behaviors within our communities. Also, sex education for children and adults in order to inform them of their rights and limits on sexual related issues should be encouraged. Parents should also pay closer attention to children and teach them the accurate names of private body parts as this will empower them to understand their bodies, ask questions and report any behavior that could lead to sexual abuse.
5.3 Reform of existing laws relating to rape
There is a case to be made out for reform and amendment of existing laws on sexual offences so as to provide wider and better protection for victims of gender-based sexual violence. With respect to child-related sexual offences, it is important to raise the ante pursuant to ensuring that children are protected from this scourge and persons with such predispositions are deterred from actualizing their aims. It bears reiteration that the laws protecting children in Nigeria are either not fully operational or not properly enforced in the states where they have been enacted. Also, there should be stiffer and more severe punishment for the abuse of children as opposed to the usual slap on the wrists that offenders receive. Existing laws like the Child Rights Act and the Violence against persons (Prohibition) Act, should be operational in all states in Nigeria. It would help if the security architecture in the country is revisited with a view to improving the level of security and quality of life that citizens are entitled to take for granted under the social contract principle.
5.4 Support from Counselling and Rehabilitation Centres
Dealing with the aftermath of sexual violence is critical to the process of healing, rehabilitation and reintegration into society of survivors. There are organizations dedicated to providing the necessary assistance to victims. Victims of sexual offences are encouraged to get help from centers and organizations dedicated to providing multi-dimensional and multi-level assistance and support services ranging from provision of access to forensic medical assistance, pro bono legal aid as well as rendering of professional counselling services to victims. These organizations also try to encourage victims of rape to speak up so that the perpetrators can be brought to justice, named and shamed. Some organizations and centers include the Mirabel Centre33, Women at Risk International Foundation (WARIF)34 and Sexual Offences Awareness & Response Initiative (SOAR)35.
Other non-governmental and non-profit organizations are encouraged to throw their weight behind the movement to stamp out, or at least, significantly reduce the menace of rape and defilement in our society. Where innocent persons have been brutalized by sexual predators, it is important for society to continue to enlarge the support system available for healing and rehabilitation. The alternative is to grow an increasing pool of bitter, rebellious and anti-social victims waiting to unleash vengeance on a society perceived to be unfeeling, uncaring and aloof. This is a "community" that society can ill-afford to breed. The time to act is now and act we must!
Footnotes
1. Nigeria Records 717 Rape Cases in Five Months – Official; https://allafrica.com/stories/202006150851.html; accessed 1st July 2020.
2.https://www.premiumtimesng.com/news/top-news/395296-amidstcovid-19-lockdown-nigeria-sees-increased-sexual-and-gender-violence.html accessed 10th June 2020.
3. Section 357 Criminal Code Act
4. Section 6 Criminal Code Act
5.https://businessday.ng/news/article/actionaid-records-253-cases-of-gender-based-violence-in-bauchi-cross-river-others/ accessed 10th June 2020.
6. Amidst COVID-19 Lockdown, Nigeria Sees Increased Sexual and Gender Violence; https://pulitzercenter.org/reporting/amidst-covid-19-lockdown-nigeria-sees-increased-sexual-and-gender-violence; accessed 1st July 2020.
7. The recent cases of Uwa Omozuwa who was raped and killed in a Church, Tina Ezekwe, a 12 year old girl gang raped by 12 men for 2 months, and Barakat Bello, an 18 year old girl who was raped and killed at her home, comes to mind.
8. See note 6
9. https://www.lindaikejisblog.com/2020/6/nigerian-mother-beats-blames-and-calls-her-2-year-old-daughter-an-ashawo-after-being-raped-video.html accessed 8th June, 2020
10. Section 357 of the Criminal Code Act, Section 282 Penal Code, Section 218 Criminal Code Act.
11. Section 30 Criminal Code Act
12. Criminal Code Act
13. Section 6 Criminal Code Act, Section 282 Penal Code
14.http://saharareporters.com/2020/05/22/17-year-old-wife-admits-murdering-husband-bauchi> accessed 31st May, 2020.
15. Section 31 Child Rights Act.
16.Section 282(1)(e) Penal Code Naan Upahar & anor v. The State(2002) LPELR – 5937(CA)
17. Section 1 Violence against Persons (Prohibition) Act, 2015
18. Section 45(2) Violence against Persons (Prohibition) Act, 2015
19. Section 27 Violence against Persons (Prohibition) Act, 2015
20. Ekiti State Gender-Based Violence Prohibition Law 2011
21. Lagos State protection against Domestic Violence Law, 2014
22. Section 358 Criminal Code Act, Section 31 Child Rights Act, Section 1(2) Violence against Persons (Prohibition) Act, 2015
23. (2015) LPELR- 24281(SC)
24. Section 218 Criminal Code Law of Delta State
25. (2016) LPELR – 40541 (SC); (2011) 3 NWLR (Pt. 1382) 96
26.https://www.icirnigeria.org/fact-check-no-it-isnt-true-nigeria-has-recorded-only-18-convictions-in-rape-cases/> accessed 8th June, 2020
27. Ibid
28. Oludotun Ogunbayo v. The State (2007) LPELR – 2323 (SC), where the Supreme Court held that it is not a rule of law that an accused cannot be convicted on the uncorroborated evidence of the prosecutrix.
29. Section 209 Evidence Act 2011
30. Chima Ude Oka v. State (2018) LPELR- 43914 (CA) PP 27 -31 paras C-C
31.https://en.m.wikipedia.org/wiki/Sex_offender-registry accessed 1st July, 2020
32. Ibid
33. Located at Lagos State University Teaching Hospital (LASUTH) Ikeja, Lagos Open from 9am – 5pm – Monday – Friday, and 10am – 4pm on weekends & Public Holidays. They can also be reached on these numbers: 07013491769, 01-2957816, 08176275732, 08176275695; and on Twitter: @MirabelCentreNG and Facebook: , website, http://mirabelcentre.org/
Originally published 10 July 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
