By Raymond Oise-Oghaede
The debate about the allegation of rape which hit the social medial penultimate week is still waxing stronger by every passing minute. As expected, a lot of people have expressed their divergent opinions from their level of understanding of the subject matter. While some opinions seem to be on the right track; some others are confusing and not adding up. However, considering the fact that `rape` is a very serious and dangerous crime that must be crushed from every sane society; I have decided to do this review for our thoughtfulness. Importantly, I am not in a position to pass judgment on the imbroglio; but, this write-up will delve on some of the relevant areas of the subject matter as it relates to the present situation in order to shed more lights on our understanding of same; and, how best to go about such in our society going forward. Expectedly, there will neither be apportioning of blames to the principal actors nor will there be any attempt to take sides on the matter to undermine the rights and privileges of anybody. I will be objective as much as possible; and as such, I wish to appeal to every one of us to be open minded in assimilating the facts.
It is a well known fact that `rape` is a serious criminal offence that has attracted and still attracting huge outrages and condemnations from every corner of all civilized societies. Thus, for the purpose of this write-up and better understanding, more emphasis will be placed on Nigeria. According to Section 357 of the Criminal Code Act “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 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 personating her husband, is guilty of an offence which is called rape”. From the definition, it is clear that the carnal knowledge will still be unlawful even if the consent of the woman or girl is obtained `incorrectly` (e.g. statutory rape). Also, Section 31 (1) of the Child Rights Act (2003), states that “No person shall have sexual intercourse with a child “. This is further buttressed by Section 31 (3) which also states that, where a person is charged with an offence under this section, it is immaterial that (a) “the offender believed the person to be of or above the age of 18years” or (b) “the sexual intercourse was with the consent of the child”. So, for those who are positing that it was a `consensual affair` and not a rape because the act was repeated with no struggle, no screaming and no bruises; these provisions will instructively put away your postulations. In this case, even if the child (below 18 years) gave her consent to the act; that will still not exonerates the accused because the girl is below the `age of consent`.
The above position is supported under Section 282 of the Penal Code (which is applicable in all Northern states of Nigeria). However, Section 282 (2) (e) states that sex with a girl under 14 years of age or who is of unsound mind is rape, irrespective of whether there is consent or not. On a related but different note; rape is defined under the Violence Against Persons Prohibition Act (VAPPA), “as when a person intentionally penetrates the vagina, anus or mouth of another person with any other part of his / her body or anything else without consent”. In the same vein, Section 7 (1) of the Nigeria Sexual Offences Bill, 2015 provides that a person who commits an act which causes penetration with a child is guilty of an offence called defilement.
From the foregoing, it is obvious that the issue of rape as a crime in Nigeria is very complex and delicate. It goes beyond the general definition of a man having carnal knowledge of a woman/girl without her consent. Therefore, you will agree with me that the case in question is very complicated and needs to be handled with care and caution because some pertinent factors must be put into consideration before arriving at a conclusion.
Firstly, the alleged incident was said to have taken place in Ilorin when the victim was 17 years old. If that be the case and considering the fact that Ilorin is in the Northern part of the country where Penal Code Law was then applicable; it means a person can only be convicted of rape if the act was committed with a girl below the age of 14 years. So, if it is affirmed that Penal Code was the law in force in Ilorin as at the time of commission of the act as alleged; the issue of `age of consent` would have been defeated (though, the Criminal Code and other subsequent laws specified the age of consent as 18 years). It is also instructive to draw our attention to Section 7 (5) of the Nigeria Sexual Offences Bill, which provided defence for any accused person “if it is proved that the victim deceived the accused person into believing she was over the age of 18 years at the time of the alleged commission of the offence; and or that, the accused person reasonably believed that the victim was over the age of 18 years” (though, this provision was not in existence during the case under review; it is important to mention it to guide our understanding of what is presently in place). At this point, the next thing to try to establish, would be if the act was done without the consent of the victim or if such consent was obtained incorrectly. This would also be very difficult to establish as a result of the fact that the incident was not immediately reported (unless the victim can prove that she was under threat not to have done so over the years).
Secondly, and very importantly, there must be penetration of the vagina (and or the anus or mouth of another person with any other part of his/her body or anything else without consent) before a rape can be said to have been committed. Even at that, the penetration can only be determined or confirmed by corroborative evidence i.e. by an eye witness or by medical report. As such, it will be immaterial whether, the victim was below the age of consent or not; or, whether the act was committed with or without her consent if it cannot be proved (confirmed by corroborative evidence) that there was penetration. So, a rape victim could still keep her virginity after the act because penetration of the anus and, or the mouth also constitutes rape. However, this law (VAPPA) is only applicable within the Federal Capital Territory. Abuja.
Thirdly, the long period of commission of the offence notwithstanding, perpetrator of rape can be arraigned at any time because the act is not affected by statute of limitation in our country (it cannot be statute barred). The only problem (especially in this case and even for indecent assault committed against a child) is the burden to prove the fact in issue of the commission of the offence. It must have to be proved beyond reasonable doubt that the act was actually committed by the accused and that there was indeed penetration (for rape/defilement). So, if such crime was not reported over the years, it is doubtful if there could be a medical report or an eye witness evidence to corroborate that penetration took place.
Fourthly, a victim must make a formal report to the police for investigations and other necessary actions. It is advisable to ensure that all substantial evidences are in place to prove the facts in issue before charging the case to court in order for the action not to backfire. This is in view of the fact that if the accused is proved to be innocent; he can institute an action of defamation against the `presumed victim` and send her to jail eventually. So, it is pertinent to look very carefully and understandingly before taking a leap.
In view of the aforesaid, you will agree with me that the issues at hand goes beyond throwing tantrums on social media or calling for the head of someone who is presumed innocent until he is proved guilty and convicted by a court of competent jurisdiction. So, my concerns are; why then are we quick to passing `malicious and unjustifiable judgments` on social media?; why is it that some of us do not apply wisdom before flooding the social media with sentimentally biased posts?; what are the rationales for taking laws into our hands in the cause of fighting for justice?; why embarking on protest to molest members of the church who were exercising their freedom of thought, conscience and religion; and, freedom of association as provided under sections 38 and 40 respectively of the 1999 constitution of the country? We should remember that the parties involved are citizens of this country who should be protected by the laws of the land. So, how reasonable and sensible is it for us to want to protect one person`s right by trampling on that of another or others? It is very imperative to always allow the legal process to be conducted in a proper manner so as not to prejudice the accused. We should desist from actions and reactions that are capable of causing lawlessness in the polity where those that have the clout, popularity and wherewithal to organize nauseating protests will always have their way in getting `jankara redress or jungle justice`.
If we are not careful in handling the act of rape, we could plunge the country into a society where every sexual intercourse are turned into rape for `fraudulent gains` and, or `act of vindictiveness`.
Consequent upon the aforementioned, we should all join hands together to fighting and eradicating the menace from our society by using every opportunity to educating the citizenry in this regard. It is high time our people should desist from stigmatizing victims of rape so that they will be encouraged to always promptly report such incidents to the relevant security agencies for appropriate actions. This will also forestall any lacuna that could jeopardize the dispensation of justice by the victims` resolve to `cover her shame` rather than doing the needful.
“At this point, it is very crucial for everyone to be guided by the fact that the accuser is protected under the law to prove her case; while, the accused is also innocent and should be seen and treated as such until proven guilty. Therefore, his dignity and integrity remain intact and must be respected; and, any encroachment upon his fundamental human rights must be treated as an affront against the laws of the land”.
Oise-Oghaede is a public policy analyst/commentator. He sent in this piece from Surulere. Lagos State. You can reach him on 08023116867 and 08099405562.