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Can husband rape wife under Nigerian law?

By Runsewe Solomon & Damilola Akinmolayan

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Rape can be defined as the act of having sexual intercourse without consent or where the consent was acquired forcefully. As with other forms of rape, the major ingredient is the absence of consent or consent would have been acquired through force or violence or threat. The Hope Classics spoke with lawyers and other personalities on the matter. Excerpts:

Adelanwa Bamgboye, Esq

Rape is defined as a crime of forcing a woman or girl to have sex, especially using violence and it is one of the oldest crimes in the world.
Traditionally, rape could only be committed outside marriage, and courts did not apply the rape statutes to acts of forced sex between spouses because it was generally believed that a woman consented to all future sexual activities with her husband through the contract of marriage.
For many cultures in Nigeria, the idea of marital rape is foreign, something imposed and that which contradicts the belief that such matters should be dealt with privately rather than by the Government.
According to the “Family Law in Nigeria”, “The parties to a marriage owe each other a duty to consummate it”. One of the grounds for dissolution of marriage under Section 15(1) of the Matrimonial Causes Act states: “A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably”.
Section 15(2)(a) of the above law provides one of the conditions that will prove this fact as it states: “that the respondent has wilfully and persistently refused to consummate the marriage”.
Therefore, the fact that a spouse has wilfully and persistently refused to consummate the marriage is enough for the court to dissolve it.
According to Edikan Ekanem, a spouse’s right to sexual intercourse must be reasonably exercised, and with due regard for the health and the disposition (mood) of the other spouse.
While a duty exists to have sexual relations, a spouse is not obliged to summit to excessive sexual demands of the other party which may for instance, be detrimental to the party’s health,”
Section 6 of 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.
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 14 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.

Kaine Agary, Esq

As human beings evolve and our societies change, our laws must keep up with the changes and define our interactions in the context of our new societies. There are many areas of our laws in Nigeria that have not kept up with the times. And there are areas of modern Nigerian society that need the guiding hands of legislature or pronouncements from the courts.
The Nigerian 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.”
Section 6 of 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. In other words, 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.
Criticism of the provisions on rape under both codes raises at least three issues: (1) the offence of rape is gender specific, only men can commit the offence of rape; (2) the act amounting to rape is limited to penile penetration of the vagina – anal or oral sex or penetration using objects or other parts of the body such as the tongue or finger, do not constitute sexual intercourse for the offence of rape; and (3) marital rape – both codes provide (with certain exceptions) that sexual intercourse between a husband and wife cannot constitute the offence of rape.
The Sexual Offences Bill 2013, which was passed by the National Assembly but was never assented to by the President. The National Assembly has also chosen not to force the Bill into law by overriding the need for the President’s assent. The bill expanded the definition of rape to cover both genders; in other words, under the bill a woman is capable of committing the offence of rape. It also provided for a sexual assault offence for non-genital penetration, i.e., penetration with mechanical objects or other parts of the body like the finger or tongue. There was some controversy surrounding the bill particularly over the age of sexual consent. The provisions in section 7 of the bill were misinterpreted as reducing the age of sexual consent to age 11 and the entire bill was resisted. This may have informed the President’s reluctance to give his assent and sign it into law.
Neither the Sexual Offences Bill nor VAPPA addresses concerns about marital rape.

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Mr. Ademola Adewumi, Esq

Our law does not recognize rape between couples who are legally married, either under the Matrimonial Causes Act or Native Law and Custom.
Either of the spouses can bring an action under sexual abuse, but not rape. In other words, a man cannot rape his wife under the Nigerian Law.
And I do not buy the idea of rape in marriage. Sexual abuse is enough and if a woman is complaining of any form of abuse, let her go to court and institute divorce proceedings and criminal proceedings too.

Mr. Francis Ewherido

The issue of rape is topical at the moment. People are asking questions and someone asked: “Can a husband also be accused of raping his wife?” For me a ‘yes’ or ‘no’ answer is insufficient. To start with, what is rape?”Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person’s consent.”
In Nigerian Criminal Code, Section 357, “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.”
Legally speaking, a husband cannot be accused of raping his wife in Nigeria, going by this definition of rape. Also in most African traditions, it will be ludicrous for a wife to accuse her husband of rape. Even the family that the woman came from will wonder if their daughter is sane. It is believed that once a man pays a woman’s bride price, he has all rights over her, including conjugal rights. In fact, some see the wife as a property. It takes a reasonable man to realize that his wife is not a piece of furniture, but a human being with a mind of her own, feelings, emotions and moods.
In Christian marriages, rape of a wife should not come in if the spouses follow the Christian teachings and their marital vows. In ICorinthians 9: 3-5, Paul wrote: “The husband should fulfill his marital duty to his wife, and likewise the wife to her husband. The wife does not have authority over her own body but yields it to her husband. In the same way, the husband does not have authority over his own body but yields it to his wife. Do not deprive each other (sex) except perhaps by mutual consent…” When taking marital vows, spouses promise to love, honour and cherish each other.
Now this is my take. In marriage, sex should be freely given and taken. Where it is not freely given, under no circumstances should it be forcefully taken. An unsatisfied sexual urge has never killed anybody and it will not kill you. Notable marriage counsellor and youth coach, Mrs. Bridget Itsueli, asked a group of youths I brought together for mentoring 12 years ago: “since you have been reading newspapers, have you ever read any obituary where the cause of death is an unsatisfied sexual urge?”
Granted that an unsatisfied sexual urge does not kill, why should you deny your spouse his/her conjugal rights? Yes, it is a right, an entitlement. Some spouses deny their spouses sex because they are angry. My question is, if you are angry with your boss in the office — and it happens sometimes — do you refuse to do your work? If your answer is no, the same thing should happen in your marriage. Whether or not you are angry with your spouse, if he/she asks for sex, please give it to him/her. If you like, you can discuss the reason for your anger later. But if you want to bottle up your anger, na you sabi!

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Kayode Ogboye, Esq

Section 282 of the Northern Nigeria Penal Code and section 357 of the Criminal Code exempts perpetrators of rape within marriage from punishment.
In its second and third periodic reports to CEDAW, Nigeria stated: “In a traditional setting, spousal rape is inconceivable. Under Nigerian Laws in both section 357 of the Criminal Code and section 282 of the Penal Code, a husband cannot be charged with marital rape. Once the marriage is subsisting and the wife has attained puberty then any sexual intercourse with her is never rape.

Steve Akintububo, Esq

It is unfortunate that marital rape is not Specifically Criminalised in Section 357 of the Criminal Code and section 1 of the violence Against persons (prohibition). Act.
Whether marital or not, sex should not be forced on a woman. Some might argue that there is implied consent upon being married to a woman and that they can demand for sex albeit forcefully from the wife at anytime.
However, the aforesaid view is clearly wrong as being married to a wife does not tantamount to her being a slave or property that you can use to forcefully gain sexual Satisfaction. Therefore several medical risks to a woman who is forcefully penetrated such as bleeding and rapture of the hymen and host of others.
Husbands should understand that even if rape is not yet Criminalized in Nigeria, Sexual assault or sexual molestation is.
Consequently, it will not be out of place to suggest to and legislation to rise to the situation and make specific laws criminalizing marital rape which has several inherent health risk especially when forced.
Finally, it is important to say that much as marital rape is not right, unreasonable withdrawal of sex by a married woman when requested for by her husband is also wrong and condemnable.

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