Post by  Barrister Ojo Olayinka

INTRODUCTION

There is no gainsaying the fact that sexual assault and molestation on children are now more prominent and pronounced in our society than ever. It is only stating the obvious that it is increasing on an alarming and startling rate. On the 6thof August, 2012, it was reported in one of the Nigerian dailies of a man of about 30 years old who raped a girl of just 3 years old. One should not be taken aback with this discovery since it has been reported of men who sleep with babies of about 3 to 4 months old. Is this not sagaciously ridiculous and preposterous? There are several other incidents happening in all nook and cranny of this society that are not even reported and even some that are not even known to the parents of those kids suffering from this sexual assault and other forms of molestation on kids.

This write up was born out of curiosity to chart a course towards the protection of children from further suffering sexual abuse, molestation and assault of any kind. This write will focus mainly on rape and other sexual assault on children.

MEANING OF RAPE

The word rape is from a Latin word “rapere” which mean “to seize or to take by force”[1].

Rape is forced sexual intercourse; sexual assault; sexual intercourse between an adult and a minor. Rape involves insertion of an erect penis or an inanimate object into the female vagina. Legal definitions of rape may also include forced oral sex and other sexual acts.[2]

Rape is one of the crime involving emotional issues. This is because it deals in the main, with the dignity of a girl. Thus in a discussion of rape, it is necessary to take into consideration societal repulsion to forceful contact or sexual assault. The nature of this offence and its consequence upon the victim both to herself and the way the society looks at her afterwards make it a very difficult offence to define and administer[3].

Howard, a learned Australian author said:

“Rape is at once of the most difficult offences to administer reasonably and one of the most difficult to define in the manner which facilitates reasonably administration. This is because it combines in high degree the qualities of case and accusation and difficulty of denial.”

There are plethora and surfeit definitions on rape; however we will only concentrate on definition proffered by the Nigerian law and that of International Parlance.

LAW OF RAPE IN NIGERIA

There are two major laws in Nigeria that governs criminal prosecution and the two laws have judiciously and extensively defined what rape is.

Section 357 of the Nigerian Criminal Code which governs the Southern Part of Nigeria defines rape thus:

“any person who has unlawful carnal knowledge of a woman or girl without her consent if the consent is obtained by force 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 a crime which is called rape”.

Similarly, Section 283 of the Nigerian Penal Code which governs the Northern part of Nigeria provides that a man is said to commit rape when he has sexual intercourse with a woman.

(a) against her will;

 

(b) without her consent ( a consent given by a woman below 16 to her teacher, guardian. Or other person entrusted with her care or education is not a consent within the meaning of the section)

 

(c) with her consent, when it has been obtained by putting her in fear of death or hurt

 

(d) with her consent, when the man knows he is not her husband and her consent is given because she believes he is another man to whom she is or believes to be lawfully married or

 

(e) with her consent when she is under 14 years of age or of unsound mind.

 

Looking critically at these Codes, it is beyond argument that the offence of rape is frown and scowl at by the Codes and this offence is punished where there is lack of consent to sexual intercourse.

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. To have carnal knowledge of a sleeping girl is rape because there is no consent. Submission by person of weak intellect or person who is too young to understand the nature of the act done is not consent.  Sexual intercourse with a girl of less than 14 years with or without her consent attracts life imprisonment.[4]

Furthermore, carnal knowledge must be proved i.e. there must be penetration. The slightest penetration of the vagina is sufficient and this completes the offence of rape. It is not necessary to prove that the hymen was ruptured or that there has been an emission of semen. There cannot be rape without penetration, where there is no penetration the accused will be charged with attempted rape[5].

Under International Law, rape is seen as a crime against humanity. Article 27 of the IV Geneva Convention of 1949 the forerunner to humanitarian law recognizes individual criminal responsibility and rape is included in the laws against humanity.

Similarly, The Statute of the International Criminal Tribunal of Yugoslavia in Article 5(g) includes rape as a crime against humanity for which an accused person stands individually criminally responsible.

Also, Article 7(1) (g) of the Rome Statute of the International Criminal Court 1998 included rape as part of the crime against humanity. It provides that:

“ rape, sexual slavery, enforced prostitution, forced pregnancy, form of sterilization, or any other forms of sexual violence of comparable gravity”

Punishment

Rape is the most serious sexual assault and is punishable with imprisonment for life with or without whipping.[6] While attempted rape is fourteen years imprisonment, with or without whipping[7]

Other forms of  sexual assault and molestation includes:

  1.  Indecent assaults on female[8],
  1. Defilement or to procure defilement- defilement or procuring he defilement of  a woman or girl by threat, intimidation, false pretences or drugging her is an offence punishable with two years imprisonment.
  1. Abduction- it is also a sexual offence to take away or detain a female against her will for the purpose of marriage or sex. Punishment for this offence is seven years imprisonment. Where a young girl is taken out of the control or protection and against the will of her parent or guardian, the punishment for such is two years imprisonment. It must however be shown that the girl is under 16 years.

Furthermore, having sexual intercourse against the order of nature or sexual offence emanating from unnatural circumstances and it is punishable with fourteen years imprisonment. Operating a brothel and the act of prostitution are sexual offence under the criminal Code. Indecent assault on any male or female is punishable with three or two years imprisonment.

ABOUT THE AUTHOR

Ojo Olayinka is a legal practitioner based in Akure Nigeria, he teaches  business law at the Federal Polytechnic, Ado Ekiti, and was called to the Nigerian Bar in 2011 with a First Class (Honors) from the Nigerian law School. Apart from being a lawyer, Mr. Olayinka is a teacher of God’s word. He is an author and a prolific writer. Some of his books includes: A Synopsis on the Evidence Act 2011, Nigerian Law of Damages and a host of others. He may be contacted via email: horlaojo@yahoo.com or Tel; 08039266302


[1] Encyclopedia Dictionary on Roman Law, p. 667

[2] webster’s world medical dictionary 3rd ed.

[3] Yakubu J.A, The University of Ado- Ekiti Law Journal,(2002)p. 11

[4] Section 282 Penal code.

[5] Oknokwo and Nash; Criminal Law in Nigeria( 2nd Ed. Spectrum law series

[6] Section 358 Criminal Code

[7] Section 359

[8] Section 360 criminal code provides that any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour, and is liable to imprisonment for two years,

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