By Mike Ozekhome
WE have so far x-rayed this vexed topic, doing a thematic and comparative analysis of same. We shall encore it today.
My humble stand: Rape is reprehensible. It suffers moral turpitude. It is against the law. It inflicts everlasting punishment on the victim – mental, psychological, physical, spiritual. It must therefore be adequately punished. There must also be restitution for rape victims. The reverse side of the coin is that I detest false rape peddlers. Young ladies who go about lazily, to prey on innocent celebrities, high society figures and politically exposed people. They do this through simulated, but false accusations of rape. I have handled quite a number of such cases. The law must also punish them adequately. What is good for the goose is good for the gander.
How Nigerian Courts Decry Rape (continues)
Last week, we saw how Nigerian courts treat rape cases. Let us read more.
In Edwin Ezigbo v. The State (2012) 16 NWLR (Pt 1326) 1, the Supreme Court decried girl child rape in stringent words:
“the facts revealed in this appeal are sordid and can lead to a conclusion that a man can turn into a barbaric animal. When the “criminal” was alleged to have committed the offence of rape, he was 32 years. His two young victims: Ogechi Kelechi, 8 years old and Chioma, 6 years, were, by all standard underage. What did the appellant want to get out of these underage girls. Perhaps, the appellant forgot that by nature, children, generally, are like animals. They follow anyone who offer them food. That was why the appellant, tactfully, induced the young girls with ice cream and zobo drinks in order to translate his hidden criminal intention to reality, damning the consequences. Honestly, for an adult man like the appellant to have carnal knowledge of underage girls such as the appellant’s victims is very callous and animalistic. It is against the laws of all human beings and it is against God and the State. Such small girls and indeed all females of whatever age need to be protected against callous acts of criminally likeminded people of the appellant’s class. I wish the punishment was heavy so as to serve as deterrent.”
Rape Is Globally Decried
The seriousness of the crime has made many nations across the globe enact and implement tough laws to curb the menace even as far as meting out the death penalty sentence. The Supreme Court of India awarded death penalty to the four men convicted of fatal gang rape of Jyoti Singh in December 2012, a case that fuelled global outcry and radically overhauled the country’s rape laws. In Saudi Arabia, rape is punishable by death under circumstances of grievous and aggravated rape, or in the case of serial rapists. In Bangladesh, the Supreme Court in 2015 ruled in an appeal challenging the mandatory death penalty for rape. It said that death sentence will remain as an option alongside life imprisonment, although depending on the gravity of the crime. In Japan, 20 years is the penalty for rape. If it is fatal rape at the scene of any other crime like robbery, then death penalty applies. In Iran, under Article 224 of the Islamic Penal Code, “fornication by force or reluctance is punishable by death”. In Pakistan, gang rape, child molestation and rape are punishable by death. Statutory rape by a man of a girl under 16, especially gang rape, is also punishable by death. And in Cuba, death penalty is the penalty for rape resulting in serious injury, especially by an offender previously convicted of the same crime or by an offender who knows that s/he suffers from a sexually transmitted disease. Rape of a child under the age of 12 is punishable by death.
Legal Requirement of “Penetration of the Vagina” In Rape Cases
In Nigeria, for the offence of rape to be properly established, there must be corroborative evidence which usually comes from eye witnesses account or medical evidence. As regards eye witnesses’ corroboration, the law requires that such witnesses must have witnessed the actual penetration of the victim’s vagina. Imagine that! How stupid! The law can be an ass. How can a rapist call a witness to view his criminal act? However, as was held in NATASHA V. STATE, the most important and essential ingredient of the offence of rape is penetration
In all jurisdictions of the world, the prosecution must prove that sexual penetration took place without the consent of the complainant. These are seen as the physical elements of the offence, or actus reus. In the common law jurisdictions, the prosecution must also prove that the accused knew that the victim was not consenting, or was reckless about knowing whether there was such consent. This is known as the mental element of the offence, or mens rea. The meaning of unlawful carnal knowledge is expressly provided for in S.6 of the Criminal Code, where it is defined as “carnal connection which takes place otherwise than between husband and wife.” The section also further states that an important element of carnal knowledge or carnal connection is penetration. This section rules out the possibility of a husband raping his wife, or vice versa. But, these have been shown to be possible. However, the slightest penetration of the vagina by the penis is sufficient. It is not necessary that the hymen was ruptured, or there was ejaculation. Only a woman or girl may be raped as far as the wordings of the Code are concerned. Even though in recent times, there have been cases of men and boys claiming to be raped, the Criminal Code Act does not take cognizance of this fact. According to S.30 of the Criminal Code, a male person under the age of 12 years is presumed to be incapable of having carnal knowledge. This is an irrefutable presumption which means that he cannot be guilty of the offence of rape or attempted rape”, even if it is shown that he has reached puberty despite his age. He may however be convicted of indecent assault. Since it is required that there must be genital penetration which a woman is incapable of doing, a woman would not be physically capable of committing the offence, but may be guilty of counseling or abetting rape. Interestingly, although a woman may not be physically capable of committing rape against a man or another woman, she may however be charged and found guilty of the offence of rape (Prof Adeyemi Ijalaiye).
This implication is deduced under S.7 of the Criminal Code which defines a principal offender as follows: “When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of committing the offence and may be charged with actually committing it, a) Every person who actually does the act or makes the provision which constitutes the offence; b) Every person who does or omits to do an act for the purpose of enabling or aiding another person to commit the offence.”
The fact that both the Criminal and Penal Code only recognizes vaginal penetration by a penis as rape has several negative implications. Firstly, the law centres only women in its definition, ignoring male victims. This creates the impression that rape is a crime in which only a man can commit against a woman.
In the case of POSU V THE STATE, (2011) SC. 134/2010, the Supreme Court held that it was the duty of the prosecution to prove the ingredients – the actus reus and mens rea – of rape beyond reasonable doubt. Hence, the prosecution must prove that the accused had non-consensual sexual intercourse, involving vaginal penetration with the victim. He must also prove that the accused intended to have sexual intercourse with the victim without her consent, or acted recklessly by not caring whether the victim actually consented or not.
Also, in DPP V MORGAN, (AC 182), the court held that a defendant should be acquitted if he had a mistaken but honest belief of consent by the victim, even if the belief in consent was unreasonable. It is for the prosecution to prove that that the defendant did not honestly believe the victim was consenting. From proving the physical act of vaginal penetration to the state of mind of the accused, this burden is extremely onerous if not impossible for the prosecution.
In ISA V KANO STATE (2016) LPELR-4001 (SC) it was held, as regards the ingredients which the prosecution must prove to sustain the conviction of the offence of rape as follows:
“The law is settled and well-grounded that the prosecution has the burden and duty to prove the accused person guilty of the following ingredients in order to sustain the conviction of the offence of rape: (a) that the accused had sexual intercourse with the prosecutrix; (b) that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation; (c) that the prosecutrix was not the wife of the accused; (d) that the accused had the mensrea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not. (e) that there was penetration.”
International Instruments on Rape
As regards dignity of human persons, many laws guide the affairs of individuals who have been violated in one way or the other. The 1999 Constitution in Chapter IV provides for the protection of the dignity of individuals as follows:
- “No person shall be subjected to torture or to inhuman or degrading treatment,
- No person shall be held in slavery or servitude and,
- No person shall be required to perform forced or compulsory labour”.
The term human dignity became a relatively new concept at the end of World War II. Dignity of human person was prompted as a result of the acts of violence and genocide emanating from the war. The UN Declaration on Human Rights provides that all human beings are “born free and equal in dignity and rights”. The imputation of violation of the dignity on a person according to the Court of Appeal in UZOUKWU V EZEONU, (1991) 6 NWLR (Pt 200) 708, would include mental harassment and physical brutalization; while inhuman treatment typifies the lack of human sentiments, belittling of one’s societal status or character and the degradation of one’s value or position of a person. As an underlying principle of International Human Rights Law, human dignity is linked to the values of autonomy and equality (To be continued).
Thought For The Week
“Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there.” (Kurt Cobain)
**Mike Ozekhome, SAN, is a Constitutional Lawyer and humanrights activist.
– Sept. 22, 2020 @ 18:25 GMT |