By Ayodele Popoola
|
Marital rape is not an offence in Nigeria. A husband cannot rape his wife. It is assumed that the wife gives implied general consent to sexual intercourse with her husband upon entering the marriage contract. This implied consent is revocable either by an order of a court or a separation agreement.
Under the extant laws in Nigeria, the Criminal Code in Section 357 states that, “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.”
Speaking from the Criminal Administration of the Nigerian Legal system, it is trite to state that a husband cannot, as a general rule, be guilty of rape on his wife. There is a similar provision under the Criminal Code as well as the Penal Code which makes the attainment of puberty by the wife the limiting age.
There are exceptions to the general rule that a husband cannot be guilty of raping his wife. He may be found guilty of
raping his wife in the following instances:
1. Decree of judicial separation. It has been held that where a competent court has ordered a decree of judicial separation, the wife is no longer bound to cohabit with the husband.
2. Where there is a divorce nisi. Similarly, where there is a decree nisi of divorce effectively ended a marriage and so it was possible for the husband to rape his wife.
3. Also, where an injunction has been granted against a
husband from molesting his wife or where he has given an undertaking to the court not to do so, a similar situation will apply.
In the same vein, even though a husband cannot be guilty of raping his wife, if he uses force or violence to obtain intercourse, he may be guilty of assault or wounding. Sexual intercourse even in marriage is a mutual agreement between a husband and his wife.
Rape in marriage is popularly referred to as ‘marital rape’. Here, we are talking about a man and woman that is legally married, can the man be prosecuted or said to have raped his wife? Hence, be made to face the wrath of the law. For any act to be condemned by any law, the law must have a provision for it but where there is no provision, it means there will be no punishment, if the act is committed.
Rape has a stigmatizing effect on the victims, it is traumatic and most times have a long lasting effect on the victims, leaving them shattered and devastated for the rest of their lives.
“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 or harm, or by means of false or fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of rape”.It is a criminal offence and the penalty is life imprisonment. A cursory look at this section reveals the punishment for rape and it is life imprisonment but if the law makes no provision for it, then, there cannot be punishment.
The Nigerian penal code also admits that there cannot be marital rape except where the girl in question is a minor, then they accede to the fact that the act is marital rape, like some other countries
Unequivocally speaking, in some other jurisdictions like the Argentina, Australia, Austria, Belgium, Brazil, Cuba, Canada, Greece, Japan, Mali, United States, South Africa, Zimbabwe, Sierra Leone, France, South Korea, Rwanda and Malawi, etc.marital rape is domesticated in the laws and it is with a severe penalty.
Prima facie, the concept of marital rape is also known as spousal rape, is one that is alien and unknown in Nigeria. The Nigerian criminal justice, has clearly ostracised the concept of marital rape. Our jurisprudence does not make room for this, or on the contrary, marital rape is not known to our laws, hence, no man can be prosecuted for this.
Suffice to say that, under Nigerian criminal law, a man may be charged with assault, depending on the circumstances under which he has sexual intercourse with his wife, but he cannot be charged with raping his wife.
Finally, it is note – worthy saying that, the current position of the law in Nigeria is that a man cannot be guilty of committing the crime of rape against his wife. Assuredly, as at now, the present position of the law in Nigeria, does not recognise the concept of marital rape/ spousal rape.
Rape in marriage is popularly referred to as ‘marital rape’. Here, we are talking about a man and woman that is legally married, can the man be prosecuted or said to have raped his wife? Hence, be made to face the wrath of the law. For any act to be condemned by any law, the law must have a provision for it but where there is no provision, it means there will be no punishment, if the act is committed.
Rape has a stigmatizing effect on the victims, it is traumatic and most times have a long lasting effect on the victims, leaving them shattered and devastated for the rest of their lives.
“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 or harm, or by means of false or fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of rape”.It is a criminal offence and the penalty is life imprisonment. A cursory look at this section reveals the punishment for rape and it is life imprisonment but if the law makes no provision for it, then, there cannot be punishment.
The Nigerian penal code also admits that there cannot be marital rape except where the girl in question is a minor, then they accede to the fact that the act is marital rape, like some other countries
Unequivocally speaking, in some other jurisdictions like the Argentina, Australia, Austria, Belgium, Brazil, Cuba, Canada, Greece, Japan, Mali, United States, South Africa, Zimbabwe, Sierra Leone, France, South Korea, Rwanda and Malawi, etc.marital rape is domesticated in the laws and it is with a severe penalty.
Prima facie, the concept of marital rape is also known as spousal rape, is one that is alien and unknown in Nigeria. The Nigerian criminal justice, has clearly ostracised the concept of marital rape. Our jurisprudence does not make room for this, or on the contrary, marital rape is not known to our laws, hence, no man can be prosecuted for this.
Suffice to say that, under Nigerian criminal law, a man may be charged with assault, depending on the circumstances under which he has sexual intercourse with his wife, but he cannot be charged with raping his wife.
Finally, it is note – worthy saying that, the current position of the law in Nigeria is that a man cannot be guilty of committing the crime of rape against his wife. Assuredly, as at now, the present position of the law in Nigeria, does not recognise the concept of marital rape/ spousal rape.
Marital rape is still unknown to Nigeria law going by section 36(12) a person can not be criminally responsible for any offence that is not defined by any federal Act or state law in Nigeria.
Going by the combination of both sections 6 and 357 of the Criminal code, offence of rape can only be raised when a man personate himself as the victim’s husband but criminal code did not penalize a husband that rapes his wife rather the criminal code drafters choose to be silent in that area.
Even though any husband that does marital rape can still be punished through the state laws governing domestic violence which varies from one state to another.
In addition, one of the cardinal points and right in marriage according to Matrimonial causes act is conjugation between the spouse, even sexual denial is a civil breach in marriage.
The Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration. But in this context, the Answer is no. Marital rape is not an offence in Nigeria. A husband cannot rape his wife. It is assumed that the wife gives implied general consent to sexual intercourse with her husband upon entering the marriage contract. This implied consent is revocable either by an order of a court or a separation agreement. In his book, History of the Pleas of the Crown (1736), Sir Matthew Hale wrote, “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”
In the Penal Code, Section 281(1) provides that: “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 another 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.”
Similarly, under the Penal Code, there is no offence of marital rape, provided the wife has attained the age of puberty.
For now, under Nigerian criminal law, a man may be charged with assault, depending on the circumstances under which he has sexual intercourse with his wife, but he cannot be charged with raping his wife.
In an African society like ours, whenever, such a question is being asked, more particularly to the general public, one is expected to receive many funny answers or some questions in return such as: What? How possible is it? What do you mean?
As a general rule a husband cannot rape his wife, this is not far from the fact that the mensrea of the said offence is “consent”, which is presumed to have been expressly and impliedly given abnitio at the wedding of the two parties.Moreover, marriage is also seen as an everlasting union which is meant to be for better and for worse, and as such, in a legal system like ours, it is quite ridiculous for a woman to accuse her husband of the offence of rape.
However, it is very important to know that a husband can be charged of the offence of rape in the following circumstances:
1.Where there is judicial separation between the two parties.
2.Where the court ordered for a divorce nisi.
3.Where there is an order of injunction restraining the husband from having a sexual intercourse with his wife due to illness.
On the whole, it is worthy of note to know that apart from the aforementioned exceptions, it is very rare in a legal system like ours for a woman to succeed in proving the offence of rape against her legally married husband, though, this may be attainable in the developed countries.So, the most common offence a wife charges her husband in Nigeria is that of assault and not the offence of rape.
As far as Nigerian Legal System is concerned, No.
This is because consent is given at marriage for sex by the wife.
In popular perception, the husband cannot be guilty of raping his lawful wife on account of the presumed matrimonial consent to cohabit. Our laws do not recognize forced cohabitation within marriage as rape( marital rape) Marital rape continues to be legal despite concerns regarding the abuse of women in the institution of marriage.
As per law, sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
But there is an exception to this. When a man had sex with a minor wife it amounts to rape, however, beyond 18 years of age there is no legal protection accorded to the wife except in cases when she is living separately under a decree of judicial separation or otherwise i.e. under any custom or usage and the husband forcibly has sexual intercourse with her without her consent, then in such cases the husband faces imprisonment of either description for a term which shall not be less than two years but which may extend to seven years.
No case law in any of the written articles here. Would be interesting to know why that is