Is marital ‘rape’  punishable under the Nigerian law?

Marital rape is defined as a situation whereby one spouse forcefully engage in sexual intercourse with the other spouse. And in the western world,  there are laws which frown at such act.  Lawyers speak with Abimbola Akindunbi and Kayode Olabanji on if  marital rape should be punishable  under the  Nigerian law. 

Excerpts:

Mr Emmanuel  Rotji, a legal practitioner

Marital rape also referred to as spousal rape is having sexual intercourse without the spouse’s consent.

 This is, however, not the law in Nigeria, as both the Criminal and Penal Code do not criminalise spousal rape. This is understandably so because it is generally believed that parties to a legal marriage have given their consent to  sexual intercourse.

Although in recent times, some countries have criminalise spousal rape, it is not the case in Nigeria. Spousal rape is a form of domestic violence which is associated with troubled marriages. These have been taken care of by some laws particularly in the Federal Capital Territory and Lagos State.

In the FCT, there is the Violence Against Persons (Prohibition) Act (VAPPA) 2015, while in Lagos, there is the Protection against Domestic Violence Law 2007.

It is generally the assumption that a husband cannot rape his wife because of ‘volenti non fit injuria’.

It is  my strong opinion that it is not right to penalize sexual relationship within marriage. It is a contractual relationship between two consenting adults who have freely agreed to enter into a binding relationship and it is ‘for better, for worse, for richer, for poorer, in sickness and in prosperity till death do us part’.

Having freely entered, parties are at liberty to legally opt out at any stage, if they believe the marriage has broken down irretrievably and until the marriage is legally dissolved, a husband cannot be guilty of spousal rape in Nigeria.

I am of the firm belief that while a man may be charged for assault depending on how he has sexual intercourse with his wife, he cannot and should never be charged with raping his wife.

I don’t believe that any law that criminalises sexual intercourse between legally married couple is justifiable and therefore, it is my conclusion that ‘marital rape’ should not be punished in Nigeria.

Mrs  Victoria Ene Agbo, a legal practitioner.

Matrimonial rape is also known as spousal rape. This may be defined as an act of sex/sexual intercourse between a couple without the consent of the other spouse.

Generally, this concept is not known nor accepted in our Federal and State laws, except for Lagos State that has similar provision in its law titled, “THE PROHIBITION AGAINST DOMESTIC VIOLENCE LAW OF LAGOS, STATE LAW NO.15, 2007.” Hence  our African society, traditional, religiously and to a length socially/morally frowns against a wife who raises the alarm of matrimonial rape.

Traditionally, it is accepted with respect to the bride price being paid. Thus everything including the body of the woman belongs to the man and he should not be deprived. Religiously, it is preferred that the wife should be submissive to her husband.

Socially/morally, it is a norm that a couple should be ready to attend to the sexual desires and respond to the urge of the other spouse,

Besides if he/she does not give to him/her, where does he/she wants him/her to get satisfaction from, if not outside.

Delving into analysing these three grounds above will sprout into a different topic. In line with the fact that matrimonial rape is not known in our legal system, section 357 and 6 of the Criminal Code defines rape to the exclusion of married couple and the exclusive phrase is otherwise than between husband and wife.

Section 281(1) of the Penal Code says, ” a man is said to commit rape when he  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”.

Hence it is deduced that a married man is not capable of rape to his wife in our legal system.

It is visible that the underlying characteristics of rape is lack of consent from the other party.

Therefore, sexual intercourse, whether in the case of a marriage without the voluntary consent of the other is worthy to be called Rape. Flowing from the topic, it is pertinent to say that irrespective of the fact that a man may have paid the bride price and fully marry a woman is not enough to disrespect her emotions. There may be acceptable reasons why a woman may be tired and not in the mood for sexual intercourse.

It is respectful and dignifying for such man/husband to patiently turn on  his wife and not molest, assault  her on bed, sometimes inflicting bruises on her because he wants to be sexually satisfied.

Such act is ANIMALISTIC, unacceptable, violates the dignity of a person  enshrined in our Constitution. One tend to ask how can a man/husband be sexually satisfied in the course of inflicting pain to the woman/wife he professes to love.?

It is trite that where a man’s right ends, there another man’s  right begins. It is appropriate for the legislators both at the Federal and State to consider this concept to reduce the rate of matrimonial rape as we are all affected, our sisters, daughters, loved ones sometimes are victims. Matrimonial rape should be punished and recognized by our legal system.

Lagos state as usual has taken the lead, but that’s not enough. Citizens need to be sensitized to enable them know the import of the law and take advantage to save themselves.

The PROHIBITION AGAINST DOMESTIC VIOLENCE LAW OF LAGOS, STATE LAW NO. 15, 2007 should be considered by legislators, connecting assault and battery as the experience on the part of wife(victim) qualifies this offence (assault and battery) in order to ameliorate matrimonial rape.

Mr. Ademola Adewumi a legal practitioner

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 Nigeria 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  Ikujuni  Ademola, a legal practitioner.

Rape is having an intercourse with someone who does not give her consent to it. The slightest penetration is rape. Rape as it is in law is a criminal offence and a serious issue for that matter.

Rape could also occur  between  husband and wife, which in law is referred to as MARITAL RAPE. It is an offence(rape) in law for either of the couple to forcefully have a carnal knowledge of the other person without an express consent.

Formerly, it is the law that once couples are married, then there could be no rape between them, having given their consent to their marriage.

 But with the development of law, experience has shown that rape could occur between husband and wife, even  when they are legally married.

It must be noted that rape could be committed by a man against a woman, and it could be vice versa, so far a party is having carnal knowledge of the other party without his or her consent.

I am, therefore, in support of the opinion that punitive punishment should be placed on marital rape. This will serve as deterrent for any spouse who wishes to commit it against the other.

Mr Tosin Eye, a legal practitioner.

It is unfortunate that marital rape is not specifically criminalized 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 any time.

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. There are several medical risks to a woman who is forcefully penetrated such as bleeding and rupture 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 our legislators 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.

 Mr Kehinde Aladedutire, a legal practitioner.

Rape is any unlawful non consensual carnal knowledge of a girl or a woman by a man. It is punishable with life imprisonment with or without whipping,  as contained in sections 357 & 282 of the Criminal Code and Penal Code respectively.

Matrimonial rape or marital rape is an act of sexuality between husband and wife without the consent of one of the spouses.

An examination of section 6 of the Criminal Code Cap 38 of the Law of Federation of Nigeria, 2004, defines unlawful carnal knowledge as “carnal connection that takes place, otherwise than between husband and wife.” This reveals that a husband can’t as a rule be guilty of rape, under Nigerian law,. This is also evident in section 282 of the Penal Code.

By matrimonial consent and contract, the wife is deemed to have given up herself to her husband which she can’t retract. Dominance of Christianity, Islam and Traditional religions in this nation which have shaped our belief system in this nation would make any legal reform making marital rape punishable impossible.

We would observe that not all the laws applicable in the white man’s land could be introduced in our land. We still cherish some of our culture, unlike the white men who have legalised issues  like homosexuality and lesbianism.

Introducing or legislating on matrimonial rape is like rocking the very basis of God’s Word on sexuality between a husband and wife.

1 Corinthians 7:3 says, “a  woman must not deprive her husband of sex and the husband must not do likewise, except both of them consent to abstain for a period.

It is, therefore, presumed that both have given up their rights to their bodies at the time of entering into the marriage contract.

However, it is clear that a reasonable man would not also want to force himself on his wife when she is sick or he has a veneral disease or other ailments. He could be charged with other offences like assault or wounding, but not matrimonial rape.

Legalising matrimonial rape may open up other vices since many women could send their husbands to jail. And the rate of infidelity and divorces which are already high would assume another greater dimension.

Mr. Sola  Ajisafe, legal practitioner , State Programme Manager,  N-Power,  Ondo State.

Rape is rape,  no matter the colour or shape of the rape. Every none consensual sexual intercourse is rape.

The good thing is that the offence of rape is  a criminal offence under the Nigerian law.