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Why rape cases are difficult to prove

By Kayode Olabanji
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Nigerian schools and other educational centres seem to have become a fertile ground for child sexual abuse and a breeding ground for paedophiles. Nothing worries parents more than that.

As the plague of child sexual abuse erodes the moral and social fabrics of schoolchildren, schools and parents appear helpless and clueless concerning what to do. Often, if a case of child sexual abuse gets reported at a police station, the matter is ‘settled’ covertly as the abuse itself.

There is no sex offenders’ register in Nigeria, meaning that a paedophile if dismissed from a school can be employed by another school to teach children.

The facts and figures of sexual molestations of schoolchildren in Nigeria are grim.

According to a 2015 United Nations International Children Education Fund (UNICEF) report, six out of 10 children in the country are made to experience sexual abuse before the age of 18.

That may pale into insignificance when compared with the fact that some of these sexual violations come in the form of rape.

Corroborating that fact is the Positive Action for Treatment Access’s report that more than 31 per cent of girls had their first sexual encounter through rape.

Specifically, at least 1,200 girls were raped in Rivers State in 2012 according to the Centre for Environment, Human Rights and Development.

In that same year, a four-year (between 2008 and 2012) analysis of sexual assault cases at Lagos State University Teaching Hospital (LASUTH) revealed that out of a total 287 reported cases of sexual assault, 83 per cent of the victims were below the age of 19.

And in its study on sexual abuse, Enugu State University Teaching Hospital (ESUTH), ound out that 70 per cent of sexual assault victims were under the age of 18.

Sex still remains a subject discussed in hush tones at many homes, leaving ignorant kids potential and vulnerable preys of sexual predators in schools. Many campaigns have been made about sex education being included on the academic menu of schools for children.

Not presenting adequate proofs is the main reason most cases of rape fail in court.

This is the submission of two legal practitioners who spoke with Hope Law on the issue.

One of them, Mr Chris Ajakaye (esq), said, “Rape as an offence is noted in chapter 30 of the Criminal Code Law of Ondo State of Nigeria.

“It is an offence on a female. Section 357 specifically defines it as an offence committed by any person who has an 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 threat or intimidation of any kind, or by means of force and fraudulent representation as to the nature of the act or in case of a married woman, with someone impersonating her husband). And such a person is liable to life imprisonment.

“Regarding the observation that most of the cases of rape charged to court end up failing, it is just like any other criminal offence, what the law requires is for the essential element of any offence to be proved, failure of which the allegation will fail.

“In that of rape, it is even technical. Before you can sustain the charge against an accused person, you need to establish the fact that the victim was actually raped.

“The defence that many accused persons alleged of rape give is to say, ‘she is my girl friend,’ ‘we have been dating’, ‘she gave her consent.’

“The moment an accused person comes up with such a defence, he has shifted the onus to the lady. It is now up to her to prove him wrong. And for her to paint the circumstances that will convince the court that the consent was not really given, that she was actually raped, may be very difficult and when it is not properly done, the case of the prosecution will collapse and it will be difficult to convict the accused person of the offence.”

Mr Ajakaye added that the person who was raped would need to produce witnesses, because it is usually a private matter between a man and a woman, except in the cases of gang-rape, where a member of the gang may opt out of committing the crime, and later volunteer himself to give evidence against other members.

“So, more often than not, it is always very difficult to get eye witness account.

“Apart from eye witness account, when somebody said she has been raped, one of the evidential requirement is to prove that ‘penetration’ took place, which would require a medical expert to have immediately examined the lady.

“Also, there must have been violence before someone could say she is raped, there must be struggle, tearing of wears, underpant, there must also be an evidence of bruises within the virginal  part of the victim.

“And apart from the above, there will be pressure from different angles, from both the victim’s family and the accused family for out of court settlement.

“Many victims cannot pluck up the courage to face the public in court to give evidence that ‘yes he did like this, like that.’

“So when you put all these factors together, it may limit how far the prosecution can go towards getting a conviction.

“If you have ten cases of rape, the highest number you can see prosecuted to conclusion cannot be more than four. And in such cases, the perpetrator would probably have been under the influence of drugs/alcohol. Under that circumstance there will be a lot of people who want a conviction, who want to come forward to give evidence.

“But if the man and the woman have been on talking terms, relating normally, and along the line the man says ‘I want this’ and the lady says ‘no”; the man nay take advantage of the lady.

“In that situation, for her to prove that she was raped may be a little difficult.

“He would even bring witnesses to testify on his behalf, because people have been seeing them together, doing things together, which will buttress the fact that she is his girlfriend.

In a separate chat with “Hope Law”, another legal practitioner, Mr Isaac Adubazi, said that most rape cases are lost because there are no cogent and concrete evidence to prove its ingredients, saying, “every offence has its ingredients which must  be proved with cogent evidence, failure of which may lead to the case being lost.

“Also due to the technicalities involved in cases of rape, if a knowledgeable expert (Doctor), is not called during the victims’ examination or at trial stage, the case may also be lost.

“The court deals with evidence placed before it and where an important or vital part of the evidence that is  is missing, the court has no choice but to discharge the accused person.

“Therefore, for a raper to be convicted, the victim herself has major role to play in support of the investigating officers.”

Owena Press Limited (Publisher of The Hope Newspaper), Akure

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