BY

PROFESSOR OLUYEMISI BAMGBOSE, SAN

 LEARNING OBJECTIVES


 At the end of this class, students are expected to:
 a. know the meaning of Rape
 b. Identify salient ingredients of rape
 c. identify the effects of the different provisions on the
offender, the victim and the witness.
 d. Know the capacity in rape cases.
 INTRODUCTION


 Rape is the most serious kind of assault; it is also referred to as unlawful
carnal knowledge. It has been defined as a crime of aggression, power and
control in which one person forces, coerces, or manipulates another person
to have sexual intercourse without their consent. The offence of rape has
been identified as one of the most under-reported crimes and one of the
commonest crimes of personal violence.

 According to the Women at Risk International Foundation, Africa has the

highest prevalence rate of child sexual abuse which is around 34.4%.
Findings from a National Survey carried out in 2014 on Violence Against
Children in Nigeria confirmed that one in four females reported
experiencing sexual violence in childhood with approximately 70%
reporting more than one incident of sexual violence. In the same study, it
was found that 24.8% of females between ages eighteen (18) to twenty-four
(24) years experienced sexual abuse prior to age eighteen (18) of which
5.0% sought help, with only 3.5% receiving any services.
 In some African societies, including Nigeria, the victims of rape do not only
suffer the emotional trauma from the experience, they also suffer the shame
of identification associated with it in those societies. The societies blame
them for being the cause of their own ordeals; they are stigmatized and
treated as immoral and unclean. These contribute largely to the refusal of
most victims to report cases of rape and invariably the continued
perpetration of the criminal act.

 Initially, the existing laws on the offence were the Criminal Code and the
Penal Code governing the southern and northern parts of Nigeria
respectively, which were also adopted as laws in the 36 states and the
Federal Capital Territory. Both laws as well as their municipal
representations define the offence and stipulate the punishments to be meted
out on offenders.
 However, as the perpetrators of rape in its various forms increased, the
inadequacies of the existing laws on rape became more apparent so that it
became necessary to enact more laws in order to bring perpetrators to book
and to make provision for the compensation and protection of the victims
of this heinous crime.

 It is in a bid to satisfy this need that more Federal and state laws such as
Administration of Criminal Justice Act, 2015 and Laws; Violence Against
Persons Prohibition Act, 2015; Violence Against Women Law and so on,
on the crime of rape were enacted in Nigeria. Ironically, the multiplicity of
the laws may have, instead of solving the problem of rape in Nigeria,
compounded the problem. This is because the law of rape now seems to be
different in various jurisdictions in Nigeria such that it is difficult to
specifically say with specificity what the law of rape is, in the country.
 MEANING AND INGREDIENTS OF THE
OFFENCE


 Section 357 of the Criminal Code and Section 282 Penal Code define the
offence of rape.
 According to Section 357, Criminal Code
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 representations 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.
 In section 282 of the Penal Code, rape is defined as follows:
A man is said to commit rape which save in the case referred to in
subsection (2) 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 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.
 The definitions above show that the offence of rape is committed when a
person engages in sexual intercourse with a woman or girl without her
consent or with her consent where such consent is obtained by force or
fraud.

 In Taiwo v State (2021) LPELR-5498(CA), the victim who was the first
Prosecution's witness (i.e. PW 1) on her way to school for her class,
boarded the commercial motorcycle of the Appellant who was directed by
PW1 to take a particular route. The Appellant refused and took another
route and stated that the route suggested by PW1 has Policemen, who will
demand for money from him. Along the way he veered off the road to a
bushy path and raped PW1 while armed with a screw driver. He drove off
from the area after the act and the PW1 stood up and walked back to the
main road where passer-by lifted her to the school clinic.
 She informed her hall mates and thereafter reported the matter to the
Police the following day. On a later date, the PW 1, while waiting for a
bus to convey her to the school campus at the motor park saw the
Appellant, she called upon her hall mates who thereafter came to meet
her at the motor-park with a Police Officer who arrested the
Appellant. The Appellant was later charged to the trial High Court. At
the conclusion of the trial, the Appellant was found guilty of raping PW1
and subsequently sentenced to 5 years imprisonment. The Appellant
miffed by the conviction at the trial High Court, appealed to the Court of
Appeal and his appeal was dismissed. The court held that rape is an
unlawful sexual intercourse with a female without her consent. It is an
unlawful carnal knowledge of a woman by a man forcibly and against
her will, the act of sexual intercourse committed by a man with a
woman who is not his wife without her consent.
Also, in Muhammadu v. State (2020) 17 NWLR pt. 1753 (SC), a case
involving a lady who, while selling rice was directed by the appellant to
enter his room to get a container to transfer the rice she has sold to him while
he followed after her and raped her forcefully; gagged her moth with a piece
of cloth; forced her on his bed and afterwards put her under his bed to
prevent her from being seen in his room. In deciding what constitute the
offence of rape, the court held that; the offence of rape is the unlawful
sexual intercourse or carnal knowledge by a man of a woman or girl.
a. Without her consent
b. 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
c. By means of false and fraudulent representation as to the nature of the act,
or
d. In the case of a married woman, by impersonating her husband
• Also, in State v. Ijiwande (2020) LPELR-5162(CA); while an underaged
female pupil was urinating behind one of the school buildings, she was
allegedly indecently assaulted, raped and defiled by the respondent who
was a teacher in the said school. The girl did not report the incident to
anyone until a few days later because she was threatened by the respondent
and warned to not tell anyone about what he did to her. But after she was
feeling unwell, she narrated the incident to her mother and a medical
examination was conducted to confirm the incident. The court held that
rape" means a forcible sexual intercourse with a girl or woman without her
giving consent to it or with her consent if the consent is obtained by force
or by means of threat or intimidation of any kind or by fear or harm or by
means of false and fraudulent representation as to the nature of the act.

See also,
Ojolade v. State (2019) LPELR-48214 (CA); Onoyiwa v. State (2018) LPELR-
44255 (CA); Sani v. Kano State (2017) LPELR- 43329 (CA); Idi v. State (2017)
LPELR - 42587(SC);; Lucky v. State (2016) LPELR - 40541 (SC) ; Terver v. State
(2015) LPELR- 24787(CA); Posu v. The State (2011) 3 NWLR (Pt. 1234) p. 393;
Iko v. State (2001) LPELR - 1480 (SC); Ogunbayo V. State (2007) 8 NWLR (Pt.
1045) 157; Upahar V. State (2003) 6 NWLR (Pt. 816) 230
 INGREDIENTS OF THE OFFENCE OF RAPE
UNDER THE CRIMINAL CODE ACT IN NIGERIA


 The following are the ingredients necessary to prove rape:
a. Sexual Intercourse (Carnal Knowledge)
 The physical element of the offence of rape which must be proved is that
a person had unlawful carnal knowledge or sexual intercourse with a
woman.
 Carnal knowledge is complete upon penetration. According to the law,
penetration is when the male organ reaches the labia minora outside the
vagina of the woman. In other words, rape is an offence under the
Criminal law that can only be committed by a male as an offender, and on
a woman as a victim. Penetration must be through the vagina and not
through the anus.
Timothy v. State (2020) LPELR-51624(CA); Ahmed v. Nigerian Navy
(2016) LPELR-40826(SC); Ogunbayo V. State (2007) 8 NWLR (Pt. 1035)
157; Iko V. State (2001)14 NWLR (Pt. 732) 221; Jegede V. State (2001)
14 NWLR (Pt. 733)264; R. v. kofi 1960 W R N L R 1
• It is not necessary to prove that the hymen was ruptured or that there was
an emission of semen, the slightest penetration of the vagina with the penis
would suffice. This distinguishes the present position of the law in Nigeria
under the Criminal Code Act from the English law where penetration could
be vaginal or anal.

• In the Ugandan case of Mukasa Evensto v. Uganda C/A 53/99, the

Ugandan Court of Appeal held that it is trite law that penetration however
slight will suffice, the vagina need not be fully penetrated and proof of
rupture of hymen is not necessary. The Court pointed out that although the
victim’s hymen was not broken, there was penetration.
• Again, in Muzeeyimana Phillipo v. Uganda C/A no. 85/1999, the Ugandan
Court of Appeal held that it is trite law that the slightest penetration is
sufficient. In that case, sexual intercourse was proved by the inflammation
of the vestibule. Evidence was led to the effect that that such inflammation
usually follows an act of sexual intercourse.
• Moreover, it has been established that ejaculation is not one of the
requirements of the offence of rape. Thus, without penetration, the
offence of rape has not been committed and although the offence is
complete upon penetration, the other acts of sexual intercourse which
may follow are parts of the offence itself and it has been held that aid
given after penetration makes the aider a party to the offence.

• In the Nigerian case of Taiwo v. State (2021) LPELR- 54298(CA), it

has been held that the most important ingredient of the offence of rape
is penetration. However, penetration with or without emission is
sufficient even where the hymen was not ruptured. The slightest
penetration will be sufficient to constitute the act of sexual intercourse.
• See also, Muazu v. State (2018) LPELR- 46768(CA);
• Shuaibu Isa v. Kano State (2016) LPELR - 40011 (SC)
• Furthermore, it must be shown that the sexual intercourse was
unlawful. Unlawful carnal knowledge has always been taken to refer
to intercourse outside the bonds of marriage; this is because a woman
is deemed to consent to the act of sexual intercourse by the marriage
ceremony.

• This is also shown in Section 6 of the Criminal Code that provides

that “When the term "carnal knowledge" or the term "carnal
connection" is used in defining an offence, it is implied that the
offence, so far as regards that element of it, is complete upon
penetration. “Unlawful carnal knowledge" means carnal connection
which takes place otherwise than between husband and wife.”
• Therefore, in Nigeria, a husband cannot be found guilty of rape, even
where the wife does not consent.
• However, this privilege or immunity for the husband has exceptions,
where a court of competent jurisdiction has dissolved the marriage or
there is a judicial separation order stating that the wife is no longer
bound to cohabit with the husband, any sexual intercourse by the
husband with the wife without her consent would amount to rape.
• Furthermore, a husband can be guilty of aiding and abetting to commit
rape by virtue of section 7(b) of the Criminal Code for husband cannot
transfer his implied consent to sexual intercourse with his wife to
another person.
Ref: DPP V Morgan (1975) 2 AER 347;
R V Waite (1892) 2 Q B 6
R V Shivpuri 1987 AC 1; R V Seymour 1983 2 AC 443
b. Lack of Consent
• This element is very crucial as it is the lack of consent that transforms
normal sexual intercourse into rape. The prosecution has to prove that the
accused had carnal knowledge of a woman or girl, despite her age, without
her consent.

• In Julius v. State (2019) LPELR-48491(CA), the court held that the

prosecutrix must prove there was Sexual intercourse without consent. In this
case, the Prosecutrix/Respondent only stated that the Appellant had
intercourse with her and nothing more. The Appellant denied this assertion.
There was nothing to show or to prove that, the Appellant indeed had Sexual
Intercourse with the Respondent. Mere saying so is not enough to prove such
allegation. There was no medical Report to state the situation of the Rape.
There was nowhere in the Respondent's testimony she stated categorically
that, the intercourse if any was without her consent.
• It has been held that it is no excuse that the complainant is a common prostitute,
that she had consented to intercourse with the accused on other occasions or that
she is the accused person’s concubine.

• According to the Law, consent obtained by force or by means of threats or

intimidation or fear of harm is no consent. Consent given because of exhaustion
after persistent struggle and resistance would appear to be no consent and to have
carnal knowledge of a sleeping woman or by personating her husband is rape

• Also, submission by a person of weak intellect or a person who is too young to

understand the nature of the act done is not consent.

In State v. Ijwande (2020) LPELR- 51627(CA) the court held that, PW1 was not
capable of consenting to sexual intercourse with the Respondent. PW1 in my
opinion was too tender to even understand matters of sexual intercourse or issue of
consent. A child under the age fourteen years is incapable of giving consent. Thus
once it is proved that an accused person had sexual intercourse with a child under the
age of fourteen years he is guilty of the offence of rape. In the instant case, at the
time of the incident, PW1’s age was given as nine years. PW1 was therefore then a
child. A child has been defined as: “any person who has not attained the age of
fourteen years”.
• Benjamin v. State (2016) LPELR- 42041(CA) The court held that even
though the Appellant had argued that the victim was sexually active at
the time of the incident and has had sexual intercourse with other men;
the argument to the court, is not acceptable. What is essential is lack of
consent. Once there is no consent, even a prostitute could be raped.

• In R. v. Fletcher 1859 8 Cox CC 131 , Lord Campbell stated that it

will be monstrous to say that if a drunken woman returning from a
market lay down and fell asleep by the roadside and a man by force had
connection with her whilst she was in a state of insensibility and
incapable of giving consent, he would not be guilty of rape.
See Charles v. State (2018) LPELR-43663 (CA); Natsaha v. State (2017)
LPELR-42359 (SC) and Shuaibu Isa v. Kano State (2016) LPELR-
40011 (SC); Jegede v. State( 2001) 1 NWLR 695 p. 623
 THE DIFFERENT FACES OF THE OFFENCE
OF RAPE


 Rape is an offence under the Nigerian Criminal Law in which case, it is a
crime defined in the Criminal Code and Penal Code, with punishments
prescribed for it. The need to curb the offence of rape has led to the
enactment of other laws in addition to the earlier Criminal Code and
Penal Code. It is worthy of note, that the Criminal and Penal Codes have
their municipal representations in form of laws passed by the different
State Houses of Assembly.

 This section deals with an analysis of the Nigerian Law of Rape in view
of the earlier laws on the subject and some of the newly enacted Federal
and State Laws.
 THE NIGERIAN CRIMINAL CODE ACT


 CAP C38, Laws of the Federation of Nigeria (LFN) 2004.
 The Criminal Code Act is the federal law regulating criminal conducts in
Southern Nigeria.

 The Act first became law in Nigeria in 1916, initially standing as the only
federal Act on the subject and being applicable to the whole of the
federation. The Code is contained in the Schedule to the Act establishing
the Criminal Code of Criminal law in Nigeria. The Code defines rape and
stipulates the punishment to be meted out on offenders. The provision and
requirements has been partially discussed above.
• In addition to the discussion above, the Act provides for the punishment
of offenders in Section 358 which states:

Any person who commits the offence of rape is liable to imprisonment for
life, with or without caning.
• The Criminal Code also provides for the unlawful carnal knowledge of
under aged girls and people with unsound mind. The offence is tagged
“defilement” in the Act and it provides in this regard that:
218. Any person who has unlawful carnal knowledge of a
girl under the age of thirteen years is guilty of a felony, and is
liable to imprisonment for life, with or without caning….

220. It is a defence to a charge of any of the offences defined

in the last preceding section to prove that the accused person
believed, on reasonable grounds, that the girl was of or above the
age of sixteen years.
• The punishment where the girl defiled is above thirteen years but below
sixteen years of age or is an imbecile is however different. According to
Section 221;
Any person who-
(1) has or attempts to have unlawful carnal knowledge of a
girl being of or above thirteen years and under sixteen years of
age; or
(2) knowing a woman or girl to be an idiot or imbecile, has or
attempts to have unlawful carnal knowledge of her; is guilty of a
misdemeanour, and is liable to imprisonment for two years, with or
without caning.
• The provisions above show the initial state of the law of rape in
Southern Nigeria as the criminal code was adopted and re-enacted as the
Criminal Code Law of the southern states.
• It is obvious that the definition of rape in this Act is limited in scope
considering the different methods by which the crime is perpetrated in
modern times. It still defines rape based on the sex of the victim and
the perpetrator; and it does not mention any way through which the
victims of the crime can be helped.

• The Criminal Code also reduces the punishment to two years, with or
without caning where the victim is above thirteen years but below but
below sixteen years of age or is an imbecile.
 PENAL CODE


 The Nigerian Penal Code is another federal Act providing for the Law of
rape.
 While the Criminal code now applies to Southern Nigeria, the Penal
Code applies to Northern Nigeria. It is still the main law on rape in the
North and it has been adapted and re-enacted as the Penal Code Law of
the different states in Northern Nigeria and in the Federal Capital
Territory, Abuja.
 The Penal Code provides for the definition for the offence of rape in
Section 282 which has been stated earlier.
 The Penal Code further stipulates the punishment for the offence of rape
in Section 283 thus:
Whoever has carnal intercourse against the order of nature
with any man, woman, or animal, shall be punished with
imprisonment for a term which may extend to fourteen years and
shall also be liable to fine.
 As seen above, the definition of rape in the Penal Code is largely similar
to the definition in the Criminal Code. However, the Penal Code does not
distinguish the rape of a matured woman from the rape of a minor or a
person of unsound mind and the punishment for rape in the Code is
fourteen years imprisonment, unlike what obtains in the Criminal Code.
 Furthermore, the Penal Code clearly states that a girl below fourteen
years of age or of unsound mind cannot be said to have given consent to
the sexual intercourse for she is incapable to give such consent.
Therefore, any unlawful carnal knowledge of such girl, with or without
her consent amounts to rape.
 ADMINISTRATION OF CRIMINAL JUSTICE ACT
(ACJA), 2015


 The Administration of Criminal Justice Act (ACJA) is a Federal
enactment on the administration of justice. It was enacted to unify the
criminal procedures in all parts of Nigeria, thereby repealing the
Criminal Procedure Act and Criminal Procedure Code initially
regulating criminal procedure in Southern and Northern Nigeria
respectively.
 While the Act does not define the offence of rape, it introduces
innovative ideas in the procedure for the trial and administration of
justice in rape cases.
Section 232 of the Act provides thus:
232. (1) A trial for the offences referred to in subsection (4) of this
section may not, where the court so determines, be held in an open court.
(2) The names, addresses, telephone numbers and identity of the
victims of such offences or witnesses shall not be disclosed in any record or
report of the proceedings and it shall be sufficient to designate the names of
the victims or witnesses with a combination of alphabets.
(3) Where in any proceeding the court deems it necessary to protect
the identity of the victim or a witness, the court may take any or all of the
following measures:
(a) receive evidence by video link;
(b) permit the witness to be screened or masked;
(c) receive written deposition of expert evidence; and
(d) any other measure that the court considers appropriate in the
circumstance.
(4) The provision of this section shall apply to:
(a) offences under section 231 of this Act;…
(5) Any contravention of the provisions of subsection (2) of this section shall
be an offence and liable on conviction to a minimum term of one year
imprisonment.
• The offences under Section 231 are rape, defilement, incest, unnatural or
indecent offences against a person. Therefore, the provision above seeks
to protect the victim or witness where any of the offences is committed.

• The protection of victims and witnesses included in this part of ACJA is

a welcome development as it is capable of encouraging rape victims and
key witnesses to report and give testimonies.

• As observed earlier, despite the fact that rape is one of the commonest
crimes of personal violence in Nigeria, it still remains under-reported
because of the cultural beliefs and mind-set of Nigerians which usually
leads to the exposure of the victims of rape to unnecessary ridicule and
embarrassment by other members of the society.
• In Nigeria, a typical victim of rape is usually afraid of what will happen to
her after reporting that she has been raped. Fears of what will happen to
her, her family name and even her hope of getting married in the future
cloud her mind that in the end, she decides to keep the occurrence to
herself and not report in a bid to protect herself from ridicule and shame.
This also applies to witnesses, who decide to not talk so that they wouldn’t
be called names or tagged wicked by members of the society.

• The provision in Section 232 above clearly seeks to solve this problem by
first stipulating that a rape trial may not be held in public where the court
so desires. This provides an exception to the general rule that all trials
must be held in an open court with public access. As a result of this
provision, where the court observes that the nature of the rape trial may
endanger the victim in one way or the other if it is held in an open court,
the court may, pursuant to this section order that the trial should not be
held in public.
• Furthermore, the section provides that the names, phone numbers and
identity of victims of rape or witnesses shall not be disclosed even in the
record of proceedings. It is enough, according to this provision to
designate their names with a combination of alphabets; the Act drives
home this point by attaching a punishment to any form of derogation
from this provision.

• This protects the victim and the witnesses in no small way as the fear of
being stigmatized, blamed or looked down on has been dealt with. Also,
the Act in Section 232 (3) provides that the court can receive evidence
through other means other than physical oral testimony such as video
link, written deposition, and having such witness or victim that needs to
be protected screened or masked.
• Moreover, section 314 of the ACJA provides for the award of
compensation to the victims of crimes. It empowers the courts, whether
in a civil or criminal matter to call for evidence while determining the
commensurate compensation for the victim. Since the Penal Code and
Criminal Code have no provision as to the compensation of victims,
this is an encouraging and impressive development in the Nigerian
Criminal Justice System.

• The Act applies to all criminal trials in Federal courts including the
Federal High Court, National Industrial Court, the Court of Appeal and
the Supreme Court. The Act also applies to courts in the FCT, Abuja.
 VIOLENCE AGAINST PERSONS
(PROHIBITION) ACT 2015

 The Violence Against Persons (Prohibition) Act (VAPPA) was passed
into law in May, 2015. The Act was passed as a result of agitations for
protection of persons against the different forms of domestic and public
violence.
 It was the need to protect citizens from such violence that led to the
enactment of VAPPA, 2015. The Violence Against Persons (Prohibition)
Act is an improvement on the penal and criminal code in relation to
violence; it also makes provision for compensation to victims as well as
the protection of their rights.
Section 1 of the Act provides thus:
1. (1) A person commits the offence of rape if-
a) He or she intentionally penetrates the vagina, anus or mouth of another person with
any other part of his or her body or anything else;
b) The other person does not consent to the penetration or;
c) The consent is obtained by force or 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 the use of any substance or additive capable of taking away the will of
such person or in the case of a married person, by impersonating his or her spouse.

• A person convicted of an offence under subsection (1) of this section is liable to

imprisonment for life except-
• Where the offender is less than 14 years of age, the offender is liable to a maximum
of 14 years imprisonment;
• In all other cases, to a minimum of 12 years imprisonment without an option of fine,
or
• In the case of rape by a group of persons, the offenders are liable jointly to a
minimum of 20 years imprisonment without an option of fine.
• The Court shall also award appropriate compensation to the victim as it may deem
fit in the circumstance.
• A register for convicted sexual offenders shall be maintained and accessible to the
public.
• By virtue of the above provisions, the Act expands the meaning of rape
embracing the other forms in which the offence is being committed in
modern times.

• Thus, while other existing laws such as the Criminal and Penal Codes
limit their scope of rape to protect only females in relation to vaginal
penetration without consent, the Act has taken a giant stride to expand
the meaning and scope of rape.

• Under the Act, in addition to the vagina, rape is committed when any
person be it male or female, intentionally penetrates the anus or mouth
of another person with any other part of his or her body or anything
else without consent, or where such consent is obtained by force or
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 the use of any substance or additive capable of taking away
the will of such person or in the case of a married person by
impersonating his or her spouse.
See Section 1 (a)-(c) Violence Against Persons (Prohibition) Act 2015
• It is worthy of note that this expanded definition under the Act protects
both males and females against rape thereby settling the age-long issue of
rape being gender biased as raised by jurists based on the traditional laws
of rape in Nigeria.

• Furthermore, by virtue of the definition of rape under this Act, it

progressively took cognizance of the fact that sex now goes beyond the
primary sex organs and thus, extended the scope of rape to include anus
and mouth.

• This is because it was difficult in times past, to bring an issue of forceful

anal or oral sex under the umbrella of rape simply because such occasion
was not envisaged or accommodated by our laws.

• Also, penetration under the Act now goes beyond penetration by the
penis to include penetration by any other part of the body and even other
objects.
• Moreover, in punishing rape, the Act provides that the punishment for the
offence of rape is life imprisonment.

• It however further provides for the punishment of offenders less than 14

years of age which implies that the age of criminality set for 12 years
under the Criminal Code has been reviewed under the Act and as such, a
person below the age of 14 (not necessarily above 12 years old) can be
guilty of rape under VAPPA but the maximum punishment in such cases
is 14 years imprisonment.

• In section 2 (a)-(c), the Act also recognizes the possibility of having joint
offenders and thus provides for the appropriate punishment in such
instances.
• Another important feature of the Act is its provision for compensation to
victims of crimes under the Act.

• Section 3 of the Act provides that the Court shall award appropriate
compensation to the victim as it may deem fit in the circumstance.
• In addition to the rights provided for under chapter IV of the Nigerian
Constitution, victims and survivors of violence are entitled to
comprehensive medical, psychological, social and legal assistance by
accredited service providers and government agencies or non-
governmental agencies providing such assistance; information on the
availability of legal, health and social services and other relevant
assistance and be readily afforded access to them; rehabilitation and re-
integration programme. See Section 38(1)(a)-(c)

• The lawmakers, taking cognizance of the fact that victims or potential

victims might not want to come forward to lodge complaints in relation
to offences under the Act because of the fear of further victimization in
the wider society (especially at the work place), provides that no
complainant of any offence under the Act shall be expelled,
disengaged, suspended or punished in any form whatsoever by virtue
of the action of compliance with the provisions of this Act. See
sections 38-39 of the Act.
• The identities of victims of offences under the Act is also sought to be
protected.
• The Act provides for the number and categories of persons that may be in
court during trial, it empowers the Court to hear proceedings in camera
or to exclude any person from attending such proceedings and prohibits
the publication of certain information in relation to the trial. This is to
ensure that the dignity of the victim (and other parties to the trial) is
protected.
According to the Act;
(45). (1) Any offence committed or proceedings instituted before the
commencement of this Act under the provisions of the –
(a) Criminal Code, Cap LFN 2004
(b) Penal Code, Cap LFN, 2004
(c) Criminal Procedure Code Cap. LFN , 2004
(d) any other law or regulation relating to any act of violence defined by this
Act shall as the case may require be enforced or continue to be enforced by
the provisions of this Act.
(2) Any provision of the Act shall supersede any other provision in similar
offences in the Criminal Code, Penal Code and Criminal Procedure Code
.
• Unfortunately, despite the progressive nature of VAPPA and its all-
encompassing provisions, the Act only applies only to the Federal
Capital Territory, Abuja. However, some States in the Federation have
adopted the Act as law.
Section 47, Violence Against Persons (Prohibition) Act 2015
 CRIMINAL LAW OF LAGOS STATE, 2011


 The Criminal Law of Lagos State, 2011 also provides for the offence of
rape. According to the Law Section 258 of the Law;
258. (1) Any man who has unlawful sexual intercourse with a
woman or girl, without her consent, is guilty of the offence of rape
and liable to imprisonment for life.
(2) A woman or girl does not consent to sexual intercourse if she
submits to the act by reason of force, impersonation, threat or
intimidation of any kind, fear of harm or false or fraudulent
representation as to the nature of the act.
(3) Sexual intercourse between a man and a woman who are
married is not unlawful.
(4) Sexual intercourse is complete on the slightest penetration of the
vagina.
The Law goes further to extend the frontiers of the offence beyond male
offenders by providing that any person who penetrates sexually the anus,
vagina, mouth or any other opening in the body of another person with a part
of his body or anything else, without the consent of the person is guilty of a
felony and liable to imprisonment for life. The offence is however called
sexual assault by penetration unlike VAPPA which categorizes them as acts
amounting to rape.
see Section 259 of the Criminal Law of Lagos State, 2011.

OYO STATE ADMINISTRATION OF CRIMINAL JUSTICE LAW,

2016
The Oyo State Administration of Criminal Justice Law, 2016 is an adaptation
of the federal Administration of Criminal Justice Act. It therefore provides for
the protection of victims and witnesses. Also, by virtue of Section 315, the
Law provides for the award of compensation to victims by courts
 OYO STATE VIOLENCE AGAINST WOMEN
LAW 2016


 The Oyo State Violence Against Women Law is a law to prohibit violence
against women in public and private life, harmful traditional practice, and
prescribe punishment for the offenders and other matters connected therewith.

 Its provisions are largely similar to the provisions of VAPPA but are mainly
focused on women.

 Section 6(1)(a)-(b) of the law defines rape as the intentional penetration of the
vagina, anus or mouth of a woman by a man with any other part of his body or
anything else without the consent of the woman to the penetration or where the
consent is obtained by force or means of treat 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 the use of any substance or additive capable of taking away the will
of the woman or in case of a married woman by impersonating her spouse.
• Though the Law recognizes only female victims and male offenders, it
goes beyond vaginal sex to recognize anal and oral sex.

• Also, in punishing rape, the Law just like VAPPA provides for the
punishment of offenders less than 14 years of age and it recognizes cases
of rape by a group of persons.

• However, in section 8 of the law, the general punishment, which is life

imprisonment does not apply to cases where the victim is a girl of or
above 11 (eleven) years of age but below the age of 13 years; or a girl
with mental disorders, in such cases, the punishment is 14 years
imprisonment without an option of fine.
Furthermore, the Oyo State Violence Against Women Law provides for
i. the compensation of victims,
ii. the rights of victims to receive the necessary materials, comprehensive
medical, psychological, social and legal assistance through
governmental agencies or non-governmental agencies providing such
assistance;
iii. The right to be informed of the availability of legal, health and social
services and other relevant assistance and be afforded ready access to
them.
iv. right to rehabilitation and re-integration programme of the State to
requisite skills in any vocation of the victim‘s choice and also in
necessary formal education or access to micro credit facilities.
Section 38(1)(a)-(c)
• The Law further protects victims by providing that no complainant of
any offence under the Law shall be expelled; disengaged, suspended or
punished in any form whatsoever by virtue of the action of compliance
with this Law.

• The identities of victims of offences under the Act is also sought to be

protected. The Act provides for the number and categories of persons that
may be in court during trial.

• It empowers the Court to hear proceedings in camera or to exclude any

person from attending such proceedings and prohibits the publication of
certain information in relation to the trial. This is to ensure that the
dignity of the victim (and other parties to the trial) is protected.
Section 38(3), (5), (6), & (7)(a)-(c)
 EFFECTS OF THE DIFFERENT PROVISIONS


 The Acts and Laws discussed in the previous slides are the legal provisions
on the law of rape in different jurisdictions in Nigeria.

 While some of the provisions are similar, others are fundamentally different.

 The differences flow from the definition of rape, age of the offender, sex of
the offender, age and sex of the victim, punishment for the offence,
protection of the victims in court and the award of compensation to victims
among others.

 One other area in which the effect is seen is in the area of use of terms. From
the provisions discussed above, while an act would be referred to as rape in
one jurisdiction, in another it may be called sexual assault by penetration.
• For example, under the Violence Against Persons Prohibition Act (VAPPA),
where penetration is done using any object and such object penetrated in the
mouth, anus or any part of the body, the perpetrator would be guilty of rape.

• However, if the above Act was tried under Section 249 of the Criminal Law
of Lagos State, 2011, it would be referred to as sexual assault by penetration.

• The differences in the provisions of these laws demonstrate the many faces
of the Law of Rape across the different jurisdictions that make up the
Nigerian Legal System.

• Consequently, a person who is found guilty of committing some acts that fall
within the definition of rape in one state and gets convicted for the offence in
that state may be discharged and acquitted in the another where such acts do
not essentially constitute the offence of rape.

• It is therefore important to consider the effects of these differences in the law

of rape on the offender, the victim of rape, the Legal Practitioner and the
Nigerian Legal System.
 THE OFFENDER


 The definitions of rape according to the different Acts and Laws suggest
who can be convicted for the crime. The Criminal and Penal Codes provide
for the offender to be a male who has a penis thereby restricting the gender
of an offender under the Codes to the male gender.
 The Act
 In a jurisdiction where the Criminal Code or Penal Code applies, only a
male can be convicted of rape and where the penetration is by an object or
any other body part other than the penis, there is no rape.

 Also under these two Codes, in a situation where the act was perpetrated
through the anus or the mouth; that is, where the penis or object was inserted
in the anus or mouth of the victim, the offence of rape cannot be committed.
 On the other hand, in the Federal Capital Territory where VAPPA
applies, and also in section 259, CRIMINAL LAW OF LAGOS STATE,
2011 and under the OYO STATE VIOLENCE AGAINST WOMEN
LAW 2016, where penetration is done using any object and such object
penetrated in the mouth, anus or any part of the body, the perpetrator can
be convicted for sexual assault by penetration or rape depending on the
jurisdiction.

 Therefore, a perpetrator of the crime may or may not be convicted and

punished for committing the offence in the same way depending on the
jurisdiction where the offence was committed.
 • The Punishment
• Furthermore, the punishment for the offence of rape which was life imprisonment
in all cases under the Criminal Code now varies from one jurisdiction to another.

• Section 283 of the Penal Code provides that anyone convicted of rape shall be
liable to imprisonment for fourteen years and a fine.

• Violence Against Persons Prohibition Act (VAPPA) on the other hand provides
that offenders are liable to life imprisonment but where the offender is less than
14 years old he/she will be liable to a maximum of fourteen (14) years
imprisonment. This is also similar to the provisions of the Oyo State Violence
Against Women Law.

• Joint Offenders
• Under the Criminal Code, Penal Code and the Criminal Code Laws of the various
states, there is no provision for the punishment of joint offenders of the offence of
rape, what applied to them was the law on principal offenders and accomplices to
crime.
• However, the situation is now different under the Violence Against Persons
Prohibition Act and the Oyo State Violence Against Women Law which provide
specifically for situations where the act of rape is jointly carried out by two or
more persons.
• In such instances, it is provided that such joint offenders are jointly liable to a
minimum of twenty years imprisonment. Therefore, joint offenders tried outside the
FCT and Oyo state may be punished with less than twenty years imprisonment
whereas their counterparts in the FCT and Oyo state are subject to imprisonment for
more than twenty years.
See Section 1(2)(c), Violence Against Persons Prohibition Act 2015; Section 6(2)(c)
Oyo State Violence Against Women Law 2016

• Age of Offender
• The age of criminality under the Criminal Code is seven (7) years; the Act further
provides that a male person under the age of twelve (12) years is presumed to be
incapable of having carnal knowledge. Section 30 Criminal Code Act

• By virtue of these provisions, it has been held over the years that a male under the
age of twelve years is not capable of committing the offence of rape, since he
cannot, according to the Act, have carnal knowledge.

• However, VAPPA and the Oyo State Violence Against Women Law now provides
for the punishment of offenders less than the fourteen (14) years old.
• The provisions do not stipulate whether or not the offenders have to be
above twelve (12) years old so it is possible that an offender who is less
than 12 years old can now be convicted under the two laws.

• This is not surprising as the two laws recognize penetration by other body
parts asides the penis and objects.

• It should be noted that the Section 8, Oyo State Violence Against Women
Law also reduces the punishment to 14 years where the victim is a girl
above eleven (11) years but below thirteen (13) years old or where the
victim has mental disorders.

• Therefore, the deciding factor in whether a perpetrator of an act will be

convicted and punished for the offence of rape depends largely on the
jurisdiction where the offence is committed and where he is charged for
the offence and his punishment also depends on the law(s) applicable to
that jurisdiction.
 THE VICTIM
• The criminal justice system has been predominantly concerned with the
accused, that is, the offender often to the exclusion of the victim.

• The victim’s role has therefore become for the most part procedural and
evidential, making initial complaint about the incidence of the offence and
testifying in Court as to the events which led to and constituted the alleged
rape with no consideration of what happens to the victim at the end of the
whole process.

• The Criminal Code Act and the Penal Code have no provision for the
victims of rape; the Acts contain only the definition of the offence and the
punishments to be meted on the offenders, with nothing on the protection or
compensation of victims of the crime.

• However, due to recent developments and movements for the protection of

victims of crime, there are provisions on the protection of victims in the new
Acts and Laws, some of which were discussed in this article.
• According to the Violence Against Persons Prohibition Act (VAPPA), a victim is
any person who individually or collectively, have suffered harm, including physical
or mental injury, emotional suffering, economic loss, or substantial impairment of
their fundamental rights through acts or omissions that are in violation of this Act or
the criminal laws of the country and includes the immediate family or dependents of
the direct victim and any other person who has suffered harm in intervening to assist
victims in distress. Therefore, in a rape case, the victim is the person who has been
raped, his/her spouse, children or other family members that have been affected in
one way or the other by the criminal act. Section 46 VAPPA

• According to the Criminal and Penal Codes, the victim of rape can only be a female.

• Section 282 of the Penal Code clearly shows this where it provides that “A man is
said to commit rape which save in the case referred to in subsection (2) has sexual
intercourse with a woman…” the Criminal Code also provides in Section 357 that
“Any person who has unlawful carnal knowledge of a woman or girl, without her
consent…”.
• These provisions show how the crime of rape has been streamlined to a crime
against the female gender over the years and the possibility of a man being raped has
been an issue of jurisprudential discourse.
• The Violence Against Persons Prohibition Act however, defines rape as the
intentional penetration of the vagina, anus or mouth of a person by the
perpetrator without the consent of the victim.

• This provision, by not indicating the specific sex of the victim and by
accommodating other areas that can be penetrated asides the vagina shows
that it is possible for a male to be a victim of rape under the Act.

• However, due to the fact that VAPPA does not apply to every state in the
federation, a male can only report that he has been raped in the FCT, there
is no provision for a male victim of rape in other states where the Criminal
Code and Penal Code still apply.

• Even the Oyo state Law which is similar to VAPPA in its provisions
protects only the female victims. Therefore, while a male victim of rape in
the Federal Capital Territory gets justice, compensation and protection, his
counterparts in other states do not enjoy such protection of the law.
• The law under the Penal and Criminal Codes did not specifically provide
for the protection of victims of rape, it did not matter what happens to
them, their health or reputation in as much as they have reported the crime
and the offender has been punished.

• However, the enactment of the Administration of Criminal Justice Act,

2015, which unifies criminal procedure throughout Nigeria, has brought
about the protection of victims of crime in Nigeria.

• The Act protects the victim by providing that a rape trial may not be held
in public where the court so decides. Therefore, where the court observes
that the nature of the rape trial may endanger the victim in one way or the
other if it is held in an open court, the court may, pursuant to this section
order that the trial should not be held in public.
• The ACJA also provides that the names, phone numbers and identity of victims of
rape shall not be disclosed even in the record of proceedings. It is enough, according
to this provision to designate their names with a combination of alphabets; the Act
drives home this point by attaching a punishment to any form of derogation from
this provision.

• Also, the Act in Section 232 (3) provides that the court can receive evidence through
other means apart from physical oral testimony such as video link, written
deposition, and having such witness or victim that needs to be protected screened or
masked.

• The ACJA provides for the award of compensation to the victims of crimes. It
empowers the courts, whether in a civil or criminal matter to call for evidence while
determining the commensurate compensation for the victim. See Section 314,
Administration of Criminal Justice Act

• The Violence Against Persons Prohibition Act, Oyo state Administration of Criminal
Justice Law and Oyo state Violence against Women Law also have similar
provisions on the protection and award of compensation to victims of rape. Sections
3, 38(1)(a)-(e), 38(3)-(4), 39 of VAPPA; Sections 231(1)-(5), 315(1)-(2) of the Oyo
State Administration of Criminal Justice Law; Sections 6(3), 38(1)(a)-(c), 38(3)-
(7) of the Oyo state Violence against Women Law.
• Victims under these laws entitled to comprehensive medical,
psychological, social and legal assistance by accredited service providers
and to government agencies or non-governmental agencies providing
such assistance; to information on the availability of legal, health and
social services and other relevant assistance and be readily afforded
access to them; rehabilitation and re-integration programme.

• It is however saddening that some states of the federation have not

enacted their Administration of Criminal Justice laws and in those states,
there is no protection for the victims of rape.

• While victims in the FCT and some other states are paid compensations
and provided with rehabilitation, treatment and other necessary services,
their counterparts in the other states where the old laws apply are left
unprotected, with no compensation and exposed to the prying eyes of the
public during trial.
 THE WITNESS


• The Criminal and Penal Codes both have no provision for the
protection of witnesses. The law was focused on the offender without
considering what happens to the witness who stands in court to
witness to the events leading to the crime. Witnesses face dangers like
threat to life, damage to property, harassment, embarrassment by
members of the society and so on. They are sometimes at the risk of
being victimized or blamed by the offender’s family members as the
cause of their relative’s being in jail.

• Rape is a sensitive crime which can, after conviction affect the

reputation of everyone attached to it in one way or the other and due to
its nature, there is usually no eyewitness to the offence, even where a
person witnesses the offence, the person is usually unwilling to testify.
• It is in a bid to ensure that witnesses come to court to testify without fear
that the newly enacted laws such as VAPPA, ACJA, Oyo state Criminal
Justice Law and Oyo state Violence against Women Law now provide for
the protection of witnesses alongside victims.

• The laws do not only protect the victims of crime, they extend to
witnesses as well. Witnesses can now give evidence through video links
and be screened where necessary or where the court finds it risky for them
to testify physically in court and their names, addresses, telephone
numbers and identities are not to be disclosed in any record or report of
proceedings.

• The protection afforded the witnesses according to these provisions are

however limited to the jurisdictions where the laws apply, not everywhere
within Nigeria. A witness may be screened in a state or allowed to give
testimony through video links and other protective methods and exposed
in another state to criticisms and attack from the public.
 • THE LEGAL PRACTITIONER
• The different provisions on the law of rape as explained in this paper are
enough to make a legal practitioner unsure of what a rape case requires and
how to go about prosecuting an offender, proving the offence or even
defending an accused person.

• A prosecuting or defence counsel will always need to look into the specific
provisions applicable in the particular jurisdiction where the case of rape at
hand is being tried. This confuses a legal practitioner as he/she cannot
categorically state what the Nigerian law of rape is, or assure his client of
what the outcome of the matter would be, based on the cases he has taken
in other jurisdictions.

• As the prosecuting counsel is faced with the dilemma of what he is

required to prove as the ingredient of rape, the defence counsel is faced
with enquiring into how he can defend his client under the applicable laws.
• For instance, a counsel who wants to defend a female accused of rape may
not be able to rely on her gender to show her incapability to commit the
offence, as it used to be under the Penal and Criminal Codes in the FCT or
any other state where the contrary has been established by law.

CONCLUSION AND RECOMMENDATIONS

• The law of rape in Nigeria has been shown to have developed over the
years and it has expanded beyond the initial limits and its sole focus on the
offender without consideration for the victim and the witnesses.

• However, different jurisdictions in Nigeria apply different laws, there is no

unified code that applies in all states to rape and this makes rape look like
the proverbial elephant which was described differently by four blindfolded
men based on their perspectives.

• There is the need for a single law that applies to rape throughout the
federation.
 TEXTS AND REFERENCES


 Oluyemisi Bamgbose and Sonia Akinbiyi. 2015. Criminal Law in
Nigeria. Evans Brothers (Nigeria Publishers pg 175.
 Bamgbose Oluyemisi (2018) Different Faces of Rape: A
Jurisdictional Issue –
 See C. O Okonkwo, 1980. Okonkwo and Naish on Criminal Law in
Nigeria. Sweet and Maxwell (London) Publishers, Second Edition. Pg
271
 C.M.V. Clarkson and H.M. Keating. 1984. Criminal Law: Texts and
Materials. Sweet and Maxwell (London) Publishers, pg 469
 R v. Marsden (1891) 2 Q. B. pg. 14 R. v. Hughes (1841) 9 C & P pg.
752
 C.M.V. Clarkson and H.M. Keating. Op cit. note 3; People (Att.-Gen.)
v. Dermody (1956) I. R. at 32;