Nigeria: Marital Rape – A Review of the Current Legal Situation in Nigeria
In this article, Adeniyi Israel Adekunle discusses the legal position regarding marital rape in Nigeria, breaking it down in accordance with our criminal laws. He concludes that the various Nigerian laws do not recognize rape between spouses, with the exception of the Penal Code which criminalizes marital rape, if the wife has not reached the age of puberty. He advocates that Nigeria take inspiration from the growing global trend and take action to criminalize marital rape, which domestic violence reports appear to be on the rise.
Mankind has begun to witness the anti-social behavior of rape since time immemorial. The act of rape, which virtually all societies around the world consider criminal, is an aggravated form of sexual assault that involves non-consensual sex, traditionally of a man with a girl or a woman. This is the general conception of the offense of rape, because the old school of thought considers that the act of rape can only be committed by a man. In modern times, advanced legal systems have recognized the need to neutralize rape sex, in the sense that a man can also be raped by a woman, and a boy or man raped by another man.
The concept of marital rape itself first served as an exception to the rape offense, as it is widely believed that a woman cannot be raped by her husband. This is because many traditions and cultures around the world do not recognize the reality of marital rape, because they believe that a woman is a lawful property of her husband, and as such, through marriage, a woman has given unlimited right and automatic consent to all sex her husband has with her. Contrary to this conservative belief, statistics have shown that over 40% of married women worldwide are victims of marital rape. As such, radical human rights activists over the past three decades have fought for the criminalization of marital rape. There is no doubt that the trend towards criminalizing marital rape in many jurisdictions around the world is rapidly gaining ground. The core of this article is based on examining the current position of the marital rape law in Nigeria.
Unequivocally, every reasonable human being agrees that rape is a horrific crime that inflicts severe physical, traumatic, emotional and psychological harm on its victims. Rape is a criminal offense punishable by life imprisonment in Nigeria. This criminal offense is provided for in Articles 357 and 282 of the Penal and Penal Codes respectively. Section 357 of the Criminal Code provides that:
“Anyone who has unlawful carnal intercourse with 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 or by prejudice, or by means of false or fraudulent representation as to the nature of the act, or in the case of a married woman, by posing as her husband, is guilty of rape ”.
However, it is important to note that section 6 of the Criminal Code specifies that:
When the term “carnal knowledge” or “carnal bond” is used to define an offense, it is implied that the offense, with respect to that element, is complete upon penetration.
“Illegal carnal knowledge” means a carnal relationship that takes place other than between husband and wife.
This provision clearly states that as a general rule a husband cannot be guilty of raping his wife. It is important to note, however, that the slightest contact of the female labia minora with the penis is sufficient ingredient to prove that the offense of rape has been committed. The core of the rape offense is penetration.
Marital rape concept
Black’s Law Dictionary defines “marital rape” as “the sexual intercourse of a husband with his wife by force or without her consent”. This definition of marital rape, from a critical perspective, seems flawed, because it retains the antediluvian notion that only women can be raped. Contemporary laws have accepted the fact that men can be raped. Thus, an appropriate and more elaborate definition of marital rape has been provided in section 262 of the California Penal Code:
“The rape of a person who is the perpetrator’s spouse is a sexual act performed in any of the following circumstances:
When performed against the will of a person by force, violence, coercion, threat or fear of immediate and unlawful bodily harm to the person or another;
When a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and such condition was known, or reasonably should have been known, by the accused;
When a person is at that moment unaware of the nature of the act, and this is known to the accused …;
When the act is done against the will of the victim by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will carry out the threat …;
When the act is performed against the will of the victim by threatening to use the authority of a public official to incarcerate, arrest or deport the victim or another, and the victim has reasonable grounds to believe that the the author is a public official … “
This legal definition is not only laudably elaborate, but also encompasses enough comprehensive grounds for scenarios that may constitute marital rape, while also avoiding linking acts of rape to males only. In other words, marital rape is any sexual act committed by one spouse on the other partner without the express consent of the partner, or when that consent is obtained by force or threat.
Marital rape in Nigeria
Prima facie, the concept of marital rape, also known as marital rape, is foreign to Nigeria. Nigerian criminal justice has clearly ostracized the notion of marital rape. The review of the situation of marital rape law in Nigeria, will be dissected in accordance with the criminal laws, as discussed below.
A careful examination of the aforementioned provision of article 6 of the Penal Code, which interprets the meaning of “illegal carnal knowledge” as provided for in article 357 of the same code, clearly shows that, as a general rule, rape cannot not be committed by a husband against his wife. This is because section 6 of the Criminal Code defined an illegal carnal relationship, such as that which took place between a man and a woman / girl who are not husband and wife. Under the penal code marital rape has been clearly made legal and as such it cannot be said that a man has raped his wife under any circumstances.
Without further ado, the provisions of article 282 (2) of the Penal Code clearly state that: “Sexual intercourse of a man with his own wife does not constitute rape, if she has reached puberty”. More simply, the Penal Code, by virtue of this provision, has explicitly and conditionally created the spousal exemption from the offense of rape. By implication, as a rule, it cannot be said that a man raped his wife under the Penal Code. However, a qualifying clause has been attached to this volatile subsection which states that: only “if she has not reached puberty”. This lucidly implies that a husband will be guilty of raping his wife, only if he has non-consensual sex with such a woman who has not reached puberty. Without much verbosity, the Penal Code has recognized the notion of marital rape, although marital rape only enjoys the entertainment of the force of law if the victim of such marital rape is a wife who has not attained the law. puberty.
Sharia Penal Code
Under the Sharia Penal Code, which is more of a regional law that has been domesticated by some Islamic-dominated states such as Bauchi, Kebbi, Jigawa, Yobe, Borno, Sokoto, Zamfara and Kano, the concept of marital rape was undoubtedly exiled. In oblivion. For example, under Section 128 (2) of the Sharia Penal Code Act, “sexual relations of a man with his wife do not constitute rape”. This provision clearly snubbed the concept of marital rape and also strongly created a marital exception to the rape offense under this law.
Marital rape from a religious perspective
In the Islamic religion, it is generally interpreted that a woman cannot refuse to have sex with her husband. In fact, it is argued in one of the Hadith, that a woman who refuses to have sex with her husband at the request of her husband is considered to be cursed by all the angels of Allah during the period of such a refusal. Apparently, Islam does not recognize the concept of marital rape.
Likewise, in Christianity it is mainly believed, even in the holy scriptures, that a woman has no authority over her own body, for her body belongs to her husband. This biblical injunction implies that a wife is not expected to deny her husband the pleasure of his own body. By necessary implication, the concept of marital rape is neither recognized nor condemned in Christian religious injunctions.
In conclusion, our criminal laws have not considered and criminalized non-consensual sex by a husband against his wife as rape. Moreover, from the above, it is clear from the jurisdiction of the criminal laws cited above, that the current position of the law in Nigeria is that a man cannot be guilty of committing the crime of rape. against his wife. Again, the current position of the law in Nigeria does not recognize the concept of marital rape. It is, however, suggested that in light of the growing and disturbing statistics of domestic violence and the poorly reported spousal rape cases in Nigeria, Nigerian lawmakers should rethink the criminalization of marital rape in Nigeria. This recommendation is relevant, in line with the current international trend of criminalizing marital rape. For example, other jurisdictions like the US, UK, Canada, France, South Korea, Zimbabwe, South Africa, Rwanda, Sierra Leone and Malawi have necessarily criminalized marital rape. Without a religious banner, the concept of marital rape is a concept which enjoys constitutional justification, in accordance with the provision of article 34 of the 1999 Constitution of the Federal Republic of Nigeria which provides for the right to human dignity. . Nigeria is advised to adopt a legislative path that makes marital rape a crime, in light of the circumstances of necessity in the country.