By Runsewe Solomon & Damilola Akinmolayan
Will the penetration of a woman’s vagina with a stick or other such instrument not suffice as rape or must the offence of rape be committed when the penetration is with or by the manhood?
THE HOPE Classics spoke with some legal practitioners and experts. Excerpts:
Rape can be defined as the unlawful carnal knowledge of a woman without her consent or with her consent, if the consent is obtained by force, or by means of fraudulent representation.
Penetration is not the only condition or ingredients of rape but it is the most important condition to be proved before an offence of rape is established.
It should however be noted that it is not necessary to have full penetration of a woman before an offence of rape can be established. Proof of slightest penetration will be sufficient to establish or proof the offence of rape.
It is immaterial whether the weak or slight penetration is achieved through the male genitals, even if the accused uses his finger rape can be established.
Under the common law, rape was defined as carnal knowledge of a woman against her will and was subject to narrow and restrictive definitions of ‘sexual intercourse’. Statutory extensions and modifications to the common law crime of rape have been made in all jurisdictions to varying degrees, but with resulting inconsistency across jurisdictions.
The penetrative sexual offence is no longer gender-specific and, despite some inconsistencies, generally includes penetration of the genitalia by a penis, object, part of a body or mouth.
A number of jurisdictions also prohibit a person from compelling another person to take part in sexual penetration. In addition, common law understandings of consent, and the conditions or circumstances that are seen as negating consent, have been considerably modified.
The penetrative sexual offence is described as:. ‘sexual assault’ or ‘sexual intercourse without consent and sexual penetration without consent offence includes the continuation of sexual intercourse after penetration in order to address cases where consent has subsequently been withdrawn.
The penalty for sexual intercourse without consent ranges from 12 years to life imprisonment, depending on the jurisdiction and the presence of aggravating factors.
In all jurisdictions the prosecution must prove that sexual penetration took place without the consent of the complainant. These are the physical elements of the offence, or actus reus.
In the common law jurisdiction of the prosecution must also prove that the accused knew that the victim was not consenting or was reckless about whether there was such consent.
The Criminal Code in section 357defined the offence of rape as follows: “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, if the consent is obtained by force or by means of threat 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 impersonating her husband, is guilty of an offence which is called rape.
Rape is a heinous crime against humanity and a global problem which forms the most grievous sexual crime which is as grievous as murder because victims could lose their lives in the process as well as the lifetime psychological and emotional trauma that the victims may suffer. In a case of gang raping a victim, it can also result in the death of the victim. It is estimated that 35% of women worldwide have experienced sexual harassment in their lifetime. South Africa has the highest rate of rape in the world.
The prosecution has the burden of proving rape which is subjected to its physical commission i.e. the actus reus while the mental element i.e. without commission of the offence is mens rea which on its own cannot grant commission of the offence of rape. There must be force: where force / fear is introduced, this clearly connotes that consent is missing.
The use of the slightest force suggests no consent at all, which is another element to look for. Where Mr. A overpowers Miss B and eventually penetrates her, it is also rape. If there is penetration: a slightest penetration of the vagina is enough to prove rape- R. v Kufi  W.N.L.R. I. for the accused to secure a conviction of rape, he must show that the accused penetrated the victim’s vagina with his penis.
According to the Criminal code, the term “carnal knowledge” where used is implied that the offence, so far as regards that the element of it, is complete upon penetration – section 6 of the Criminal Code. Mere penetration is enough to constitute the offence; whether there is ejaculation or not. Any act done just to satisfy sexual urge without penetration does not amount to rape – see The Queen v. Anofi Seidu. Sir Richardson, author of the ‘Notes on the Penal code Law explains that mere penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape’.
Flowing from the above, it becomes clear that penetration is not the only condition in establishing the offence of rape but there cannot be rape without penetration, where a man is impotent and he is found on top of a woman against her wish, it is not rape but an attempt to commit rape. Recommendation It is my avowed proposition that victims of rape should be bold enough to report to the appropriate government agencies. Also the society at large should also help in the campaign to fight against the scourge of prevalent cases by encouraging victims to speak up and as well not stigmatize rape victims in the society.
Rape has been defined in a variety of ways. The Nigerian Criminal Code in section 357 defines rape as follows, 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 impersonating her husband is guilty of an offence which is called rape.
It follows this up by providing in section 358, that the punishment for the offence of rape is imprisonment for life. It is imperative at this point to refer to the Criminal Code’s definition of ‘carnal knowledge’ since that is the key word in the offence.
According to section 6 of the Criminal Code Act, the offence of rape is complete upon penetration. Further, unlawful carnal connection is one which takes place otherwise than between husband and wife. A lot of issues arise with this definition.
First is the emphasis that the only person to be raped is a woman. This ostensibly may be as a result of the addendum that the offence of rape is complete upon penetration and since physiologically a woman has no weapon of penetration, she can therefore not be guilty or capable of rape.
It may be argued that a woman is imbued with a vagina and to that extent she can be penetrated. These issues ask for clarification. In the world of science and technology, is it not possible for a woman to actually penetrate a man through the anus or even for a woman to penetrate another woman?
As this question is raging, there is also the need to clearly understand the status of a woman who procured another man to rape a woman. Will such a woman be liable as a party under section 7d of the Criminal Code? Furthermore, will the penetration of a woman’s vagina with a stick or other such instrument not suffice as rape or must the offence of rape be committed when the penetration is with or by the penis?
At this juncture, it becomes imperative that we seek a definition of sexual penetration. Section 1 of the law contains the definition section. It defines ‘sexual penetration’ to “include any act which causes penetration to any extent whatsoever by- (a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person; (b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or (c) the genital organs of an animal, into or beyond the mouth of another person, and ‘sexually penetrates’ has a corresponding meaning.
Rape is when a man uses his penis to penetrate someone’s vagina, anus or mouth without their consent (the person did not agree to it). The victim of the offence can be a male or female.
In accordance with Section 79 (2) Sexual Offences Act 2003, penetration is a continuing act from entry to withdrawal. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw.
Sexual assault by penetration is when the attacker sexually penetrates the vagina or anus of the victim without their consent. The penetration could involve a part of the attacker’s body (for example a finger) or an object (for example a bottle or a vibrator).
An attacker might also use his penis. There is an overlap between the offences of ‘rape’ and ‘sexual assault by penetration’. This is to cover cases where the victim is not sure if they were penetrated by a penis, for example, because they were blindfolded at the time.
Rape, unlawful sexual activity, most often involving sexual intercourse, against the will of the victim through force or the threat of force or with an individual who is incapable of giving legal consent because of minor status, mental illness, mental deficiency, intoxication, unconsciousness, or deception. In many jurisdictions, the crime of rape has been subsumed under that of sexual assault. Rape was long considered to be caused by unbridled sexual desire, but it is now understood as a pathological assertion of power over a victim. Rape is “the 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.”
The Sexual Offence Act 2003 was a significant overhaul of the law that deals with sexual violence. It removed from the law a number of offences like indecent assault and buggery and replaced them with new offences such as rape and assault by penetration.
Under section 2(1) SOA 2003 a defendant is guilty of assault by penetration if: he intentionally penetrates the vagina or anus of another person with a part of his body or anything else; the penetration is sexual; lf the complainant does not consent to the penetration; and the defendant does not reasonably believe that she consents.
The sections on consent and penetration discussed above also apply to this offence. The penetration may be by a part of the defendant’s body (his finger or tongue) or with an object (such as a vibrator or bottle). If the penetration is using the defendant’s penis then the relevant offence is rape rather than assault by penetration.
A defendant can be tried for assault by penetration in circumstances where the complainant does not know what she was penetrated with because the offence can be committed with any object. Penetration of the mouth is not included in this offence (as it is in rape, see above).