SEXUAL OFFENCES

Learning Outcomes

1.) Categories of Sexual offences/Definitions: Rape, Attempted Rape, Indecent

Assault, Indecent Exposure, Abduction, Sexual offences involving children:
Defilement of girls and idiots, Incest, Offensive Conduct, Unnatural offences
2.) Statutory Provisions:
1. Section 358 of the Criminal Code Act Cap “C38”, Laws of the Federation, 2004
(Applicable in all the Southern States).
- S. 282 of the Penal Code (Applicable in all the Northern States)
- The Child Rights Act (Applicable in the FCT and States which have domesticated
it)
- The Violence Against Persons (Prohibition) Act 2015(VAPPA) applicable only in
the FCT and in the States which have domesticated it.

3.) Ingredients of the offence of rape/What the prosecution must prove

- Who can commit the offence (SS 30cc & 50pc).
- Can a person under 18 give consent for sexual intercourse?

4.) Distinction between Consent and submission in sexual offences

- Is submission consent?
5.) The actus reus and mens rea of rape
6.) Burden of Proof
7.) Corroboration in sexual offences
8.) Punishment for successful proof
9.) Can men be raped?
10.) Other sexual Offences
11.) Case law: R v. Williams (Consent obtained by force, threats, intimidation
or by fear of harm or violence is not consent); Iko v. The State; Ogunbayo
v. The State; Rabiu V. The State; R. v. Offiong; Ahmed v. Nigerian Army.
12.)What is sexual abuse?
13.)Conclusion: How victim can seek help.

CATEGORIES OF SEXUAL OFFENCES/DEFINITIONS: By the provisions

of the Criminal & Penal Codes, there are several categories of sexual offences:
 Rape: Section 357/358 of the Criminal Code & Section 282 of the Penal Code
 Attempted Rape: Section 359 of the Criminal Code
 Indecent Assault: Section 360 of the Criminal Code
 Indecent Exposure: Section 26 of VAPPA
 Sexual offences involving children: Defilement of girls and idiots: Section 218
of the Criminal Code

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 Abduction: Section 318, 362 & 225 of the Criminal Code
 Offensive conduct
 Unnatural offences: Section 214 of the Criminal Code
RAPE: SECTION 357/358 OF THE CRIMINAL CODE & S. 282 OF THE
PENAL CODE, THE VIOLENCE AGAINST PERSONS (PROHIBITION)
ACT 2015 (VAPPA) APPLICABLE ONLY IN THE FEDERAL CAPITAL
TERRITORY ABUJA AND A FEW OTHER STATES, THE CHILD
RIGHTS ACT, 2003

“Rape is condemnable, it is an unjustifiable act in our society and

it is, finally, time that we rise as a nation to condemn and
eradicate this despicable act.

Victims of rape are made to suffer unquantifiable anguish, some

become diagnosed with post-traumatic stress disorder,
dissociation from reality, depersonalization, they endure physical
violence, avoid social life, get infected with sexually transmitted
infections, encounter serious difficulty in remembering events,
relives moments of sexual assault and unwanted pregnancy
amongst other ills.

The severity of the offence of rape cannot be over emphasized.

Little wonder why a lot of pundits have advocated strict
punishments for the offence.”

In the case of Popoola v State (2013) 17 NWLR (Pt 1382) P. 100Per Muntaka-Coomasie J.S.C
at page 120 paras G-H on rape said:

“the offence appeared to be heinous and heartless. The sentence meted out by the
trial court amounts to abdicating its role as a judicial officer. I condemn such type
of sentence. The sentence is unnecessarily lenient and loose”.

In the same light,

Per Ngwuta J.S.C AT PAGE 12, Paras D-E said

“I join my learned brother in expressing disappointment that the appellant was

given a lenient term of five years in prison. I think that the severity of punishment
for rape, with particular reference to statutory variety, should rank next to capital
punishment”

The most serious form of the sexual offences/assault is rape and yet it is hugely
unreported and most victims are female. The Black’s Law Dictionary, 9 th Edition
defines rape as “an unlawful sexual intercourse committed by a man with a
woman not his wife through force and against her will”.

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Definition: There is no universally accepted legal definition of rape – definitions vary
between different legal systems. Increasingly, however, the Elements of Crime of the
Rome Statute for the International Criminal Court, and international and regional human
rights tribunals have developed principles which should govern definitions of rape in
domestic laws. However, the definition of rape in the Elements of Crime to the Rome
Statute of the International Criminal Court is the most advanced definition available to
international lawyers. The Rome Statute defines the crime against humanity of rape in
Article 7(1)(g) of the Elements of Crimes:

"1. The perpetrator invaded the body of a person by conduct resulting

in penetration, however slight, of any part of the body of the victim or
of the perpetrator with a sexual organ, or of the anal or genital opening
of the victim with any object or any other part of the body.

2. The invasion was committed by force, or by threat of force or

coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power, against such person or
another person, or by taking advantage of a coercive environment, or
the invasion was committed against a person incapable of giving
genuine consent."

Under Nigerian law, rape is the act of sexual intercourse committed by a man with
a woman not his wife and without her consent, committed when the woman’s
resistance is overcome by force or fear, or under other prohibitive condition. It is a
serious offence attracting severe penalties by virtue of Section 358 of the Criminal
Code.

In a nutshell, rape is non-consensual sexual intercourse. When a man has sex with a
woman without her consent (in Nigeria – under the PC and CC, only women are capable
of being raped). Under the VAPP Act, both sexes can be raped.

Sexual assault is similar to rape, but is not rape. Sexual assault is any form
of sexual contact or behavior that occurs without the explicit consent of the recipient

STATUTORY PROVISIONS: Section 357 of the Criminal Code

comprehensively defines rape as:
“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 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.

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By Section 282 of the Penal Code Law Cap 89Laws of Northern Nigeria 1963:
“A man is said to commit rape who, save where he had sexual intercourse with his
wife, has sexual intercourse with a woman in any of the following circumstances:

(a) Against her will

(b) Without her consent

(c) With her consent where her consent has been obtained by putting her in fear
of death or of hurt

(d) With her consent when the man knows he is not her husband and 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 14 years of age or of unsound
mind. (See also Obiakor v. The State (2002) 10 NWLR (Pt 925) 493).

The Violence Against Persons (Prohibition) Act 2015(VAPPA) applicable only

in the Federal Capital Territory Abuja. This law applicable only in Abuja is a
breath of fresh air. The citation of the Act presents its purpose as it says “An Act
to eliminate violence in private and public life, prohibit all forms of violence
against persons and to provide maximum protection and effective remedies for
victims and punishment of offenders; and for related matters”. The VAPPA
accommodates the changing nature of perverted and modern forms of unnatural
intercourse. For one thing, it expands the definition of rape to include any person
(male or female) as offenders, also widen intercourse to include oral and anal sex
and any other form of intercourse.

VAPPA provides in Section 1 of the Act: “Definition of Rape

(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.

(2) A person convicted of an offence under subsection (1) of this section is liable
to imprisonment for life except –

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(a) where the offender is less than 14 years of age, the offender is liable to a
maximum of 14 years imprisonment;
(b) in all other cases, to a minimum of 12 years imprisonment without an option of
fine; or
(c) 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.
(3) The Court shall also award appropriate compensation to the victim as it may
deem fit in the circumstance.
(4) A register for convicted sexual offenders shall be maintained and accessible to
the public”

Juvenile Offenders: Under the Criminal Code, a male under 12 is incapable of

rape. He can only be charged for indecent assault. However, VAPPA states that
offenders less than 14years can be sentenced to a maximum of 14years
imprisonment.

Gang Rape: We also observe that VAPPA provides specific punishment for gang-
rapist. It is a minimum of 20years without an option of fine. VAPPA goes on to
provide for appropriate compensation to the victim of rape and mandates that a
register for convicted sexual offenders shall be maintained and accessible to the
public. This will make the public aware of the existence of a sexual offender in
their locality and so be careful around him or her.

VAPPA is thus more in tune with the times than the CC or the PC.It is a more
progressive legislation.

THE CHILD RIGHTS ACT LFN 2003.

This law promulgated for the protection of the Nigerian Child also expands the
scope of the offence of rape. Under this law (already ratified by two-thirds of states
in the country), the crime of rape accommodates both male and female offenders
and on any child (male and female). Consent is also not a defence hence making
liability for the crime very strict to protect innocent minors.

By Section 31 of the Act,

“(1) No person shall have sexual intercourse with a child.

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(2) A person who contravenes the provision of Subsection (1) of this section
commits an offence of rape and is liable on conviction to imprisonment for life.

(3) 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 eighteen years; or
(b) the sexual intercourse was with the consent of the child.

The CRA in Section 32 further prohibits other Forms of Sexual abuse and
exploitation on a child in any manner not already mentioned under the Act
commits an offence. It goes on in 32 (2) to state that: “A person who commits an
offence under subsection (1) of this section is liable on conviction to imprisonment
for a term of fourteen years”. The Act also provides in Section 33 for other forms
of exploitation where it provides that:

“(1) A person who exploits a child in any other form or way not already mentioned
in this Part of this Act which is prejudicial to the welfare of the child commits an
offence.

(2) A person who commits an offence under subsection (1) of this section is liable
on conviction to a fine of five hundred thousand naira or imprisonment to a term of
five years, or to both such fine and imprisonment”.

INGREDIENTS OF THE OFFENCE OF RAPE

For the prosecution to secure conviction against an accused person for the offence
of rape, it must prove the following ingredients of the offence beyond reasonable
doubt:
a.) That a man, the accused had sexual intercourse with a woman, the victim
b.) That the act of intercourse was unlawful, not being between husband and wife
c.) That in giving the evidence of intercourse, complete penetration is proved
d.) That the accused had the requisite mens rea, that is, the intention to have
intercourse with a woman without her consent or that the accused acted
recklessly not caring whether the woman consented or not.
e.) Also, the prosecution must adduce evidence to corroborate the complaint made
by the victim and although this is not required as a matter of law, it is required
in practice.

See Rabiu v. The State (2005) 7 NWLR (PT 925) 495 where the court held that
under Section 282 (1) of the Penal Code Law of Northern Nigeria, the above were

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the ingredients of the offence of rape which the prosecution is under a duty to
prove.
Requirements of the offence of rape:

1.) Carnal Knowledge

Thus simply means the act of having sexual intercourse with a woman. The
prosecution must prove carnal knowledge between the accused person and the
prosecutrix before the charge of rape can be sustained. The expression used in the
Penal Code is sexual intercourse; but whether it is called carnal knowledge or
sexual intercourse or coitus, the main ingredient is that there must be penetration,
that is, the insertion of the penis into the vagina. (See Iko v. The State (2001) 4
NWLR (PT 733), 221; Oludotun Ogunbayo v. The State (2007) 8 NWLR (PT
1035) 157).

Penetration is defined by the Blacks’ Law Dictionary, 8th Edition at Page 1169 as it
relates to criminal law as ‘the entry of the penis or some other part of the body
or a foreign object into the vagina or bodily orifice’.

It is settled law that the offence of rape is complete upon penetration. This is the
most important ingredient of the offence and unless penetration is proved, the
prosecution must fail. However, penetration needs not be complete or total. It is
sufficient at the slightest touch of the penis on the vagina manora and it is not
necessary to prove any injury or the rupture of the hymen to constitute the offence
of rape. (Iko v. The State (Supra) It takes place when the male organ reaches the
labia minora which is outside the female vagina (See R V. Kofi (1960) WRNLR
1; see also Iko v. The State (2002) 14 NWLR (PT 732) 221). Furthermore,
emission is not a necessary requirement, ejaculation is not one of the requirements
of the offence of rape: See the dictum of His Lordship Ogbuagu JSC in Oludotun
Ogunbayo v. The State (Supra), pages 182-183; Iko v. The State (Supra); State
v. Ojo (1980) 2 NCR 291 and Jegede v. State (2001) 14 NWLR (PT 733) 264).

The law recognized only the male penis as the object that can be used to commit
rape (R. V. Gaston (1981) 78 CAR 164; Ahmed V. Nigerian Army (2011) 1
NWLR (Pt 1227) 89 CA; Oludotun Ogunbayo v. The State (Supra).
Penetration must be through the vagina and not the anus (Iko v. The State).
Penetration must be through the vagina and not through the anus (Iko v. The State
(Supra). This distinguishes the present position of the law in Nigeria from the
English Law where penetration could be vaginal or anal (See S. 1 of the Sexual
Offences Act 1956 (S0A) as substituted by Section 142 of the Criminal Justice and
Public Order Act 1994.
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2.) The Carnal knowledge must be unlawful

This means carnal connection which takes place otherwise than between a husband
and wife 9See Section 6 of the Criminal Code (CC). In R. V. Chapman (1959) 1
QB 100; (1958) 3 AER 143, the Court held that the term unlawful carnal
knowledge means “extra marital”.

3.) Lack of Consent

The Black’s Law Dictionary, 8th Edition, at page 323, defines consent as “an
agreement, approval or permission as to some act or purpose given voluntarily by a
competent person; legally effective assent”.

One of the legal requirements that the prosecution must prove in a charge of rape is
lack of consent from the prosecutrix. Absence of consent to the sexual intercourse
by the prosecutrix is a necessary factor in the offence of rape as where there is
consent, it does not amount to rape. Once lack of consent is proved, it is no defence
for the accused person to say that the prosecutrix is a common prostitute or that she
has given her consent to sexual intercourse with him in the past. It is not also a
defence for the accused person to say that the prosecutrix is his concubine or
girlfriend.

Consent obtained by personating a married woman’s husband is no consent. Also,

consent obtained by force, threats and intimidation or by fear of harm or violence,
fraud/fraudulent misrepresentation as to the nature of the act or tricks (R V.
Williams (1923) 1 KB) is no consent.

Just as consent induced by fear of violence has not been regarded as real consent
neither is consent which is given under certain fundamental mistakes brought about
by the deceit of the defendant regarded as real. In R. V. Clarence (1888) 22
Q.B.D. 23, Stephen J. identified two such kinds of fundamental mistake, the first is
to the identity of the actor and the second as to the nature of the act. As far as the
first kind of mistake is concerned, a man who induces a married woman to have
sexual intercourse with him by impersonating her husband commits rape. What of
the man who impersonates the victim’s boyfriend? In R. V. Elbekkay (1995)
Crim L.R. 163, the sleepy and drunk victim had intercourse with a man who got
into her bed, thinking that it was her boyfriend. The moment she discovered her
mistake, she reacted violently, punching the defendant and cutting him with a
knife. The Court of Appeal in confirming that this was rape stated: “How can we
conscientiously hold that it is not rape to impersonate a husband in the act of

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sexual intercourse, but not if the person impersonated is merely, say, the long term
live-in lover…the vital point about rape is that it involves the absence of consent.
That absence is equally crucial whether the woman believes that the man she is
having sexual intercourse with is her husband or another”.

As to the 2nd kind of fundamental mistake, in R. V. Williams (1920) 1 K.B. 340,

W, a choir master had intercourse with a 16 year old chorister on the pretence that
it was a medical operation to create an air passage to improve her voice projection.
The girl, who trusted W, was completely ignorant of sexual matters and so her
consent to what occurred was ineffective, she had been raped. Had she been aware
that what was happening was sexual intercourse but wrongly believed it will
improve her voice, it would not have been rape.

If the purported consent was earlier given but later withdrawn before the act, then
the offender will be liable. E.G where A approached B for sexual intercourse and B
gave her consent but after the first round, B refused further sexual intercourse, A
will be liable if he continues in sexual intercourse with B. The law is that the
consent must be given freely and voluntarily so criminal responsibility will also lie
where the consent was obtained by force or by means of threats or intimidation of
any kind, or by fear of harm, or by means of false or fraudulent representation as to
the nature of the act (See Oludotun Ogunbayo v. The State (Supra) at p.178
and Iko v. The State (2001) 14 NWLR (PT 732) 221.

It is clear from the wording of S. 357 CC that consent given by a very young girl or
by an idiot- a lady of weak intellect – in circumstances in which the victim cannot
be said to understand the nature of the act, is invalid. The consent will also be
vitiated if it is obtained by fraud or misprepresentation when a woman thought the
rapist was her husband). Thus we see that consent obtained by false impersonation
of the prosecutrix’s husband, deceit, fraud, or intimidation is not consent in the eye
of the law and the acts of the accused person amounts to rape all the same.

The fact that the victim did not scream or attempt to escape does not imply
consent. It is therefore rape to have sexual intercourse with a female who is drunk
(R V. Lang (1975) 62 CAR 50) or unconscious or asleep. (Larter and Castleton
(1995) Crim. L. R. 75). More likely today is the situation in which drugs are
secretly administered which renders the victim incapable of resistance. Where
consent to sexual intercourse is obtained after exhaustion from persistent struggle
or threat, the accused person will be guilty of rape.

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At early common law, and for many centuries rape was defined and “the carnal
knowledge of a woman forcibly against her will”. The law of rape at that time
required that the sexual intercourse should be against the will of the victim. The
victim was required to “resist t her utmost” a requirement that involves actual
physical resistance to the sexual act. A mere verbal objection was insufficient. In
The State v. Burgdorf 53 M O 65 1873, the reason given for the ancient
requirement of actual physical resistance is that “woman jealous of her chastity,
shuddering at the bare thought of dishonor would be expected to resist to her
utmost”. This is no longer the position of the law as it has been discovered that it
can worsen the injury to the victim. As noted by learned author Joshua Dressler,
although a female’s resistance is highly relevant in demonstrating lack of consent,
her lack of resistance indicates little in relation to consent. This common law
position was the law in England until the case of Camplin v. R (1845) 1 Cox CC
220 where it was stated that rape could take place even though there was no force
provided that the victim did not consent to the sexual intercourse. See the Nigerian
case of R. V. Ajulo (1989) 1 CLRN 251

Distinction between Consent and submission

A distinction has been drawn between Consent and submission. According to

Owoade (1990) in his article “A note on rape” published in the Ogun State
University Journal. 1990 1 OSU Law Journal p. 25, though the words seem similar,
there is a distinction. Consent is synonymous with approval and cooperation
whereas submission on the other hand is like an induced consent.

4.) Capacity to commit rape:

The Criminal Law recognizes that certain persons are incapable of committing
certain offences due to some factors such as age, gender or sex, marital status or
mental state.

A. Age: For a man to be guilty of rape, it must be shown that he has the capacity
to have sexual intercourse as one of the ingredients of rape is penetration. The
prosecution must lead credible evidence to show that the accused person
penetrated the vagina of the prosecutrix. Thus a person who does not have the
capacity to penetrate cannot be held guilty of rape. Thus a child or an impotent
person cannot be guilty of rape. So even though the Courts or Section 257
CC/282 PC did not define who a ‘man’ is in the context of rape, Section 30 of
the Criminal Code makes it clear that “a male person under the age of 12
years is presumed to be incapable of having carnal knowledge. This
presupposes that a person under the age of 12 years cannot be guilty of the

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 offence of rape. He may however be guilty of indecent assault”. [Emphasis
mine].

As this is an irrebutable presumption of law, such a boy, even if there is

evidence that he has attained the state of puberty, cannot be convicted for rape
or even attempted rape. See also Section 176 of the CPA which provides that
the boy can be convicted for indecent assault, provided that he is not under the
age of 7 years and it is proved that at the time of doing the act he had capacity
to know that he ought not to do it.

However, where a boy under the age of 12 years but above the age of 7 aids or
abets a male person in having sexual intercourse of a female, he can be liable
for rape by virtue of Section 7(b) of the Criminal Code. Section 7(b) provides:
“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 the offence, and
may be charged with actually committing it, that is to say-
(a) ……………..
(b) every person who does or omits to do any act for the purpose of enabling or
aiding another person to commit the offence;

B. Marital Status: In his book, History of the Pleas of the Crown (1736), Sir
Matthew Hale wrote, “But the husband cannot be guilty of a rape committed
by himself upon his lawful wife, for by their mutual matrimonial consent and
contract the wife hath given herself up in this kind unto her husband which she
cannot retract.” Also under Nigerian law, a husband cannot be guilty of raping
his wife as there is an implied consent to sexual intercourse given by the wife
upon marriage. Infact Section 6 of the Criminal Code defines ‘unlawful carnal
knowledge’ as ‘carnal connection which takes place otherwise than between a
husband and wife”. Also, the PC, explicitly states that sexual intercourse by
a man with his wife is not rape.

As with the CC and the PC, the Criminal Laws of Lagos State (CLL)
explicitly states that sexual intercourse by a man with his wife cannot be
unlawful, and therefore a man cannot rape his wife. This implied consent will
however expire on the grant of a decree of divorce or dissolution of marriage
by a court of law or where a court has ruled that a wife is no longer bound to
co-habit with her husband. In these cases, sexual intercourse between the
husband and the wife without her consent will amount to rape. It must be
pointed out on the authority of R. V. Miller (1954) 2 QB 282, that a wife who
has merely presented a petition for divorce cannot be held to have been raped
by her estranged husband during the pendency of divorce proceedings between
them as the law still presumes them to be legally married until there is an order
of court to the contrary. Nonetheless, where a husband applies force or

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 violence to his wife in order to have sex with her (as in this case where she
sustained injuries), he may be guilty of assault occasioning actual bodily harm,
though not rape. R. V. Miller (Supra). A husband can be guilty of aiding and
abetting commission of rape by virtue of Section 7 (b) of the CC (DPP V.
Morgan (1976) AC 182. A husband cannot transfer his implied right or
consent to sexual intercourse with his wife to another person (DPP V. Morgan
(Supra).

This old common law rule which Nigeria inherited from England is due for a
review as indeed other jurisdictions have done as the reasoning in the past that
a man cannot rape his wife is no longer tenable. It has been argued that the
whole position and the status of women today are different from what they
were in the past. In H. M. Advocate v. Duffy (1983) SLT 7, the Judge held
that if a man could be found guilty (in whatever way and degree of
seriousness) of violence against his wife it would be unreasonable not to find
him guilty of rape of his wife if the necessary facts were proved. Other
jurisdictions have revisited the rule and changed it. Some States in the USA
such as South Carolina and Idaho have largely abandoned though not totally,
the marital rape exception. (See the South Carolina Code Ann S16 – 3658
1999 and the Idaho Code Section 18 – 6107 1999). Under Idaho law, “no
person shall be convicted of rape for any act……. “with that person’s
spouse except under 9specified) circumstances. In New Jersey, since the
enactment of the New Code of Criminal Justice which came into effect on
September 1, 1979, marital rape exemption has been abolished (See New
Jersey State Ann 2 (c): 14-5(b); See also The State V. Smith 426 A. 2d 38
(N. J. 1981). Germany and Scotland have also amended their laws. In Nigeria,
the marital rape exemption still applies and the issues that pertain to it have
never been brought before a Court of law.

What then is the fate of a woman whose husband forcefully and violently
has sexual intercourse with her? Proof of physical assault or sexual
intercourse occassioned by violence is a ground for applying for
separation or divorce.

C. Gender or sex: It is also clear from the wording of Section 357 of the CC and
the Penal Code, that it is only a male person who can be guilty as a direct
participant in a rape case. This interpretation is based on the meaning of the
phrase carnal knowledge in the definition of rape 9The penetration of the
female organ by the male).it therefore means that while a male can be guilty of
direct participation in a rape, only a female can be a victim of rape. A woman
cannot be guilty of committing rape, although she can be convicted of aiding,
counseling or procuring the commission of the offence. (See Section 7 of the

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 Criminal Code. See also the case of R. V. Ram (1893) 17 Cox 609 where a
wife was convicted for aiding her husband to rape her maid.

D. Lastly, the definition of rape as contained in the Code means unlawful sexual
intercourse with a woman or girl without her consent. This means that a man
cannot be raped under our law.

THE ACTUS REUS AND MENS REA OF RAPE

The actus reus of rape is having intercourse with a woman without her consent
(the slightest penetration of the male penis into female genitalia). In Ahmed v.
Nigerian Army (2011) 1 NWLR (PT 1227) 89 at 95, the Court of Appeal, Abuja
Division held that the important and essential ingredient of rape is penetration.

The mens rea of rape is an intention to have sexual intercourse with a woman or
girl without her consent. (See Section 6(a) of the Sexual Offences (Amendment)
Act, 1976. In addition to intending to have sexual intercourse, the defendant must
know that the person is not consenting, or be reckless as to whether he or she
consents. This is a statutory endorsement of the law as laid down by the House of
Lords in DPP V. Morgan (1975) 2 All ER 347; (1976) AC 182. Prior to the
Morgan case, a defendant’s belief that the woman was consenting has to be based
on reasonable grounds. However, the House of Lords dispensed with this
requirement and held that if an accused person believed that the woman was
consenting he would not be liable even though he had no reasonable grounds for
his belief. However, even though the learned authors Okonkwo and Naish in page
274 of their book, ‘Criminal Law in Nigeria’, argue that the principle is valid in
Nigeria, there is indeed nothing in Section 357 of the CC that suggests that a man
who committed rape under the mistaken belief that the woman consented does not
bear the burden of establishing reasonable grounds for his belief within the ambit
of Section 25 of the Code. I agree with the postulations of learned author Ifeolu
John Koni in his book ‘Appreciating criminal law in Nigeria’ at page 285, that it is
not correct to say that a mistaken belief, that is unreasonable or which is not
properly grounded or founded will automatically vitiate intention. Happily, as at
today there is no known Nigerian case which has applied the principle in DPP V.
Morgan.

BURDEN OF PROOF

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The burden of proof of the offence of rape is on the prosecution and it never shifts.
Section 138 of the Evidence Act and Obiakor v. The State (2-002) 10 NWLR
(pt 776) 612.
PUNISHMENT UPON SUCCESSFUL PROOF OF THE OFFENCE OF
RAPE

By Section 358 of the Criminal Code any person who commits the offence of
rape is liable to imprisonment for life, with or without caning while by Section 283
of the Penal Code, the punishment for committing the offence of rape is life
imprisonment or any less term and the person shall also be liable to a fine. We
there see that the offence of rape is not punishable with death.

By Section 1 of VAPPA any person who commits the offence of rape is liable to
imprisonment for life except -

(a) where the offender is less than 14 years of age, the offender is liable to a
maximum of 14 years imprisonment;

(b) in all other cases, to a minimum of 12 years imprisonment without an option

of fine; or

(c) in the case of rape by a group of persons, the offenders are liable jointly
10 a minimum of 20 years imprisonment without an option of fine.

CAN A MAN BE RAPED?

The popular view held by society now is that a man can be raped and this accords with
the realities of what is going on in the society today.

Formerly under our laws, the position was that a man could not be raped; this position
has been modified greatly by the coming into effect of the Violence Against Persons
(Prohibition) Act 2015. The Act expanded the definition of what constitutes rape. It must
however be noted that the Act has a very limited application; it does not apply to the
whole of Nigeria but to the Federal Capital Territory Abuja and to States who have
domesticated it like Cross River State. For this reason, the position of the law on rape
under the Criminal code which reflects the law on rape in the whole of Nigeria and the
position of the law on rape under the Violence Against Persons (Prohibition) Act 2015
which reflects the current position in the Federal Capital Territory Abuja, would be
considered.

Under the Criminal Code Act, a male cannot be raped either by another male or even by a
female. The implication of this is that if a person, (the rapist/abuser) with the use of threat
or force and without the consent of his victim penetrates his victim’s anus with his sexual

14 | P a g e
organ or an instrument, in the eyes of the law the man has not been raped. The victim can
seek no relief under the criminal law for rape nor can the abuser be tried or even punished
for committing the offence of rape.

The Nigerian law on rape (with the exception of the Federal Capital Territory Abuja) as it
stands now clearly states that only women or girls can be raped. Therefore a male outside
the Federal Capital Territory Abuja and in some States cannot be considered to have been
raped under both the Criminal Code Act and the Penal Code Act.

As has been earlier stated, the position is different under the Violence Against Persons
(Prohibition) Act. The Act recognises that males can be raped.

Under the Act, 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;
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.

The following can be deduced from the law

1. A man can be raped
2. The rapist can be either a man or a woman
3. The offence of rape is complete upon the penetration of the anus or even mouth of
the male victim by the rapist with any other part of his body or anything whatsoever. This
means that the penetration of the anus or mouth of the male victim with any kind of
instrument or object qualifies as rape.
4. The hallmark of rape is the absence of consent; thus once the victim does not
consent, or his
consent is obtained by force, threat, intimidation, or by fear of harm, or false or
fraudulent misrepresentation as to the nature of the act, or as a result of the use of any
substance or additive capable of taking away the will of such a person or in the case of a
married person by impersonating his spouse, then the act could qualify as rape.

5. A male rape victim now has a remedy in law against his abuser.

The punishment for rape under the Act is life imprisonment and where the offender is
less than fourteen years of age the punishment is imprisonment for not more than
fourteen years. Where the rape was carried out by a group of persons, the offenders are
jointly liable to imprisonment term of not less than twenty years without an option of
fine. A rape victim can in certain circumstances also get financial compensation.

We will now consider other forms of protection afforded males under the Nigerian
criminal law.

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The Criminal Code Act is the primary criminal law legislation that states what constitutes
crimes in the Southern part of Nigeria, its equivalent in the North is the Penal Code Act.
Virtually all the states of the federation have their own Criminal Code law, but it is very
similar in content to the Criminal Code Act. The provisions of the Act would be
considered to determine the extent of the protection it affords males in Nigeria.

UNNATURAL OFFENCES/SODOMY: Section 214(1) of the Criminal Code Act

provides that “any person who has carnal knowledge of any person against the order of
nature is guilty of felony and is liable to imprisonment for fourteen years”.

The provisions of section 214(1) of the Criminal Code Act which is similar to section
81(1)(a) of the Armed Forces Act has been recognised by the Supreme Court as
criminalising Sodomy. It is apt to reproduce the pronouncement of the Supreme Court on
this point. The Supreme Court while stating what amounted to sodomy stated as follows:

“In my respectful view, by putting or inserting his penis into the anus of the pw1, it
amounts to having carnal knowledge of him and this act is against the order of nature and
therefore amounts to the said offence of sodomy……… “ If any man is guilty of this type
of offence, though he cannot be prosecuted for the offence of rape, (Except under the
Violence Against Persons (Prohibition) Act) he can be prosecuted for the offence of
sodomy.

This is a laudable provision as it affords some kind of protection to men against sexual
abuse by their fellow men.

The punishment for sodomy is 14 years imprisonment, while an attempt to commit the
offence of sodomy carries a 7 year prison term.

INDECENT TREATMENT OF BOYS UNDER FOURTEEN YEARS

Section 216 of the Criminal Code Act states that “any person who unlawfully and
indecently deals with a boy under the age of fourteen years is guilty of a felony and is
liable to imprisonment for seven years”. The law went further to state that the term “deal
with” includes doing any act which, if done without consent would constitute an assault.

The provision of this section is wide enough to accommodate a wide range of acts which
constitute sexual abuse. This section is also wide enough to accommodate sexual abuse
perpetrated by both females and males on young boys below the age of fourteen.

Acts which can come under this section include but is not limited to; touching the boy’s
genitals, the abuser forcing the child to touch his own genitals, indecent touching of the
boy’s body, or the abuser compelling the child to touch his or her own body, (whether
clothed or not) engaging in sexual activity in the presence of the child, compelling the
child to watch pornography or read pornographic materials, kissing e.tc.

As earlier stated the punishment for indecently dealing with a boy under 14 years is an
imprisonment term of 7 years.

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INDECENT ASSAULT ON MALES

Section 353 of the Criminal Code Act provides that “any person who unlawfully and
indecently assaults any male person is guilty of a felony and is liable to imprisonment for
3 years.

This section covers both adult males and male children. This section is also wide enough
to cover a wide range of acts which constitute sexual assault. Thus any kind of unwanted
and unsolicited touching, which does not accord with decency, is punishable under this
section.

ASSAULT WITH INTENT TO COMMIT UNNATURAL OFFENCES

Section 352 of the Criminal Code Act also provides that “any person who assaults
another with intent to have carnal knowledge of him or her against the order of nature is
guilty of a felony and is liable to imprisonment for fourteen years.”

Assault is broadly defined in the law as follows:

A person who strikes, touches, or moves or otherwise applies force of any kind to the
person of another, either directly or indirectly, without his consent or with his consent, if
the consent is obtained by fraud or who by any bodily act or gesture attempts or threatens
to apply force of any kind to the person of another without his consent, in such
circumstances that the person making the attempt has actually or apparently a present
ability to effect his purpose, is said to assault that other person and the act is called an
assault.

The section further states that the term “applies force” includes the case of applying heat,
light, electrical force, gas, odour, or any other substance or thing whatever, if applied in
such a degree as to cause injury or personal discomfort.

When a person assaults another with the intent of having carnal knowledge of the person,
the abuser is liable to a term of fourteen years imprisonment. The broad definition of
assault in the law makes it possible for the section to accommodate assault of a sexual
nature irrespective of the instrument used to cause injury or discomfort to the victim by
the abuser.

UNLAWFUL SEXUAL INTERCOURSE WITH A CHILD

This is applicable to children only and not the adult male.

Under the Child’s Right Act, a child is defined as a person under the age of eighteen
years.

Section 31 of the Child’s Right Act prohibits any person from engaging in sexual
intercourse with a child. Any person who engages in such intercourse with the child is
deemed to have committed the offence of rape and liable to imprisonment for life if
17 | P a g e
 convicted. The section further provides that it is immaterial that the child consented or
that the person thought the child has attained eighteen years or is above eighteen years.

OTHER FORMS OF SEXUAL ABUSE AND EXPLOITATION

Section 32 of the Child’s Right Act also provides that a person who sexually abuses or
sexually exploits a child in any manner not already mentioned under the Act commits an
offence and a person who commits an offence under this section is liable on conviction to
imprisonment for a term of fourteen years.

This provision is very elaborate as it can accommodate any act whatsoever which
amounts to sexual abuse or sexual exploitation of the male child. Examples of acts which
can come under this section include but is definitely not limited to; child prostitution,
child trafficking for prostitution, child pornography, indecent sexual assault e.tc. The list
is endless.

It is evident from the foregoing that the law provides some measure of protection against
sexual abuse in its varying forms for the males, this however does not obliterate the need
to broaden the scope of the protection currently afforded males under the law.

OTHER CATEGORIES OF SEXUAL OFFENCES: Attempted Rape, Indecent

Assault, Indecent Exposure, Abduction, Sexual offences involving children:
Defilement of girls and idiots, Incest, Offensive conduct, Unnatural offences.

II. ATTEMPTED RAPE: Section 359 of the Criminal Code

Under Section 359 of the Criminal Code, “any person who attempts to commit
the offence of rape is guilty of a felony, and is liable to imprisonment for
fourteen years, with or without caning”.
If a person intends to commit the offence of rape and in the process of putting his
intention into execution by means he has adopted to its fulfillment, and thereby
manifests his intention by some overt act, but actually falls short of his intention to
commit that offence intended either through an intervening act or involuntary
obstruction, such a person is said to commit the attempt of the offence of rape. The
courts are empowered to convict an accused person for attempted rape, in so far as
the ingredients of the full offence of rape are not satisfactorily established. For
example where the other elements of the offence have been proved but the fact of
penetration cannot be proved, the accused person may be convicted of attempted
rape. In practice, whenever the prosecution is able to prove other ingredients
except penetration, the offender can be convicted of attempted rape.

Ingredients to prove attempted rape

The mere expression of desires to have sexual intercourse with a woman without
more will not constitute the offence of attempted rape. For the accused person to be
guilty of attempted rape, it must be shown by credible evidence that the accused

18 | P a g e
 person had exhibited all the elements necessary to constitute rape but did not
achieve penetration because of some intervention or supervening circumstance or
penetration cannot be proved by the prosecutrix.

In R. V. Offiong (1936) W.A.C.A. 83, the appellant was charged with the offence
of attempted rape. The case of the prosecution at the trial was that the appellant
entered the room of the complainant uninvited, took off his clothes and a desire to
have sexual intercourse with her and in the prosecution of his desire, actually
caught hold of her. On a charge of attempted rape, the court held that these facts
were not sufficient to constitute the offence and found him guilty of indecent
assault instead. Aggrieved by the conviction, the appellant appealed to the West
African Court of Appeal where he was discharged and acquitted. The WACA in its
judgment held as follows:

“The acts of the appellant fall short of an attempt to commit rape.

They are merely acts which indicate that the appellant wanted to
have and had made preparations to have connection with the
complainant. The charge of attempted rape is indivisible and the
acts found by the judge constitute at the most the preparation for
an attempt to have unlawful carnal knowledge of the complainant
and it cannot therefore be said that part of that charge has been
proved”.

The rule embodied in this case should however be applied with caution. It is
submitted that where indeed there is evidence that the accused would have
actualized his unlawful purpose but for some intervening events such as
neighbours coming to the rescue of the prosecutrix, or a sustained resistance from
her etc then a charge of attempted rape should be sustained. But if after the initial
attempt, the mind had a change of mind due, perhaps to the plea of the victim, then
the rule in Offiong’s case should apply. The test then should be whether the
intended act was abandoned or aborted. If abandoned, there is no attempt to
commit rape but the reverse would then be the case if the attempt was aborted.

III. INDECENT ASSAULT: Section 216, 217, 222, 353 & 360 of the
Criminal Code
An indecent assault can be committed on or by any person of either sex. The
relationship of the accused to the victim, such as marital/conjugal is not relevant.
(Alawusa V. Odusote (1941) WACA 140). In Kowalski’s case (1988) 86
Criminal Appeal Report, 339), the defendant forced his wife at knife-point to
commit fellatio and had sexual intercourse with her. The Court held that though
this does not amount to rape, it is indecent assault.

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The Criminal Code in Sections 216, 217, 222, 353 and 360 provides for the offence
of ‘indecent assault’ on different categories of people.
Section 216 states thus: “Any person who unlawfully and indecently deals with a
boy under the age of fourteen years is guilty of a felony, and is liable to
imprisonment for seven years.
The term "deal with" includes doing any act which, if done without consent, would
constitute an assault as hereinafter defined.

Section 217 states: “Any male person who, whether in public or private, commits
any act of gross indecency with another male person, or procures another male
person to commit any act of gross indecency with him, or attempts to procure the
commission of any such act by any male person with himself or with another male
person, whether in public or private, is guilty of a felony, and is liable to
imprisonment for three years. The offender cannot be arrested without warrant.

Section 222 provides: “Any person who unlawfully and indecently deals with a girl
under the age of sixteen years is guilty of a misdemeanor, and is liable to
imprisonment for two years, with or without caning. If the girl is under the age of
thirteen years, he is guilty of a felony and is liable to imprisonment for three years,
with or without caning. It is a defence to a charge of the offence defined in this
section to prove that the accused person believed, on reasonable grounds, that the
girl was of or above the age of sixteen years.

The term "deal with" includes doing any act which, if done without consent, would
constitute an assault, as hereinafter defined.

Section 222A. (1) Whoever, having the custody, charge or care of a girl under the
age of sixteen years, causes or encourages the seduction, unlawful carnal
knowledge or prostitution of, or the commission of an indecent assault upon, such
a girl, shall be liable to imprisonment for two years.

(2) For the purposes of this section, a person shall be deemed to have caused or
encouraged the seduction, unlawful carnal knowledge or prostitution of, or the
commission of an indecent assault upon, a girl who has been seduced, unlawfully
carnally known, or indecently assaulted, or who has become a prostitute, if he has
knowingly allowed her to consort with, or to enter or continue in the employment
of, any prostitute or person of known immoral character.

Section 353 states: Any person who unlawfully and indecently assaults any male
person is guilty of a felony, and
is liable to imprisonment for three years. The offender cannot be arrested without
warrant.

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Section 360 of the CC provides that ‘any person who unlawfully and indecently
assaults a woman or girl is guilty of a misdemeanor, and is liable to imprisonment
for two years. Just like rape, consent is a defence to this offence.

The above sections provide for offences of ‘indecent assault’ of a boy under the
age of 14 years, indecent acts on a male by another male either in public or private,
indecent dealings with a girl under the age of 16 years, indecent assault on any
male person, and indecent assault on a woman of girl.

Except for the offence of indecent assault of a male by a male in Section 217, inn
all the other sections that provide for the offence of indecent assaults or acts, the
act could be by females or males

Where an accused person is charged with the offence of rape and at the conclusion
of the trial, the evidence led by the prosecution is not sufficient to prove the
offence of rape, he may be convicted for the offence of indecent assault. This is
because the offences of rape and indecent assault are regarded in law as kindred
offences. To this end, Section 231 of the Administration of Criminal Justice Act
of Lagos State, 2011 provides:

“Where on a trial for rape, defilement, incest, unnatural or indecent offences

against a person, the facts proved in evidence can ground conviction for indecent
assault and not the offence with which the defendant is charged, he may be
convicted of the offence of indecent assault, and be punished as if he had been
convicted on a charge or an information charging him with the offence of indecent
assault”.

Like the offence of rape, assault between husband and wife can hardly be regarded
as indecent assault by the court. This does not mean however that a husband cannot
be held guilty of assault perpetrated against his wife. In the case of Alawusa V.
Odusote (Supra), the accused person shaved the pubic hair of his wife. He was
arrested and charged with indecent assault. The Court held that the assault as
between husband and wife could not properly be characterized as indecent and he
was convicted of an assault under section 351 of the Criminal Code.

Requirement to prove Indecent Assault

Though the offences are in different sections of the CC, the requirements are to a
large extent the same.
1. An assault or battery: (R.V. Kimber (1983) 3 AER 316). This is the actus
reus of the offence of indecent assault. A mere touch is enough as long as it
causes the victim to apprehend the immediate application of unlawful force to
his body. The assault can be committed by words alone if they cause the

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 necessary apprehension. It has thus been held that assault can be committed
over the phone. (R. V. Constanza (1997) 2 CAR 492). In the Constanza case,
the Court of Appeal stated that the necessary proof is what is in the mind of the
victim. The issue of how it got there: whether by seeing an action or hearing a
threat and whether that threat was conveyed verbally through words spoken
either directly in the presence of the victim or over the telephone; or whether
the fear was aroused through something written, whether it be a letter or fax, are
wholly irrelevant. It means that the act of the accused must have caused the
victim to fear immediate unlawful force. However, it will not be an assault, if
the circumstances are such that they cannot possibly be any fear that the threats
will be carried out immediately as where the accused is conveying word to the
victim on the telephone from another country. (Tuberville v. Savage (1669) 1
Mod. Rep 3.

2. The assault must be unlawful; without consent: The assault or touching on

the victim must not be justified, excised, mistaken or accidental. Where the
accused accidentally touched the victim, there would be no assault. In the same
vein, there cannot be assault where the victim gives valid and real consent. A
victim’s apparent consent will not be valid if any of the real vitiating elements
in the law of rape applies. This would be the case where the consent is given
under mistake whether induced by fraud, inducement as t the nature or quality
of the transaction. For example, where the accused pretends he is performing a
medical procedure and touches a part or parts he or she would not have been
given consent to touch if not for the procedure, then consent cannot be said to
have been given and this would amount to indecent assault. (See R.V.
Tobassum (2000) CLR 686).

It would be unlawful for an accused person to indecently assault any girl below
the age of 16 or any boy under the age of 14 as they are unable to give valid
consent. Therefore it is unlawful for any person to indecently assault such a
person. The accused person must have the required Mens Rea for the assault or
battery (R. V. Court (1989) AC 28; (1988) 2 AER 221).

3. The assault must be indecent and so considered by right minded people.

This is an objective test which means that it must be considered an offence to
contemporary standards of modesty and privacy. Touching the genitals of a
person unlawfully or a woman’s breast will be considered indecent. The whole
act in its entirety will be considered in determining whether the act amounts to
an indecent act. In Beal v. Kelly (1951) 2 AER 763, the accused exposed
himself to a boy of 14 years and invited the boy to handle him. When the boy
refused, the accused grabbed his hand and pulled the boy towards him. It is
clear that the grabbing of the boy’s hands constituted an assault which was not

22 | P a g e
 indecent but the purpose and circumstances were clearly indecent. The
divisional Court held that there had been an indecent assault.

Where there is an assault, but in the circumstances the assault cannot be

regarded as indecent, even if there is a secret indecent motive behind the
assault, the assault does not become indecent. In R. V. George (1956) C.L.
Rep. 52, the defendant attempted to remove a girl’s shoe as it gave him sexual
gratification. Streatfield, J. held that there was no indecency. He said an assault
only became indecent if it is accompanied by circumstances of indecency
towards the victim. However, in R. V. Court (1989) AC 28, the defendant was
held liable for indecent assault of a 12 year old girl whom he spanked on the
buttocks as it gave him sexual gratification.

Where the assault also involves battery, there is no need for the victim to be
aware of the circumstance of indecency. Therefore, it is possible for an indecent
assault to be committed on a sleeping person by touching that person in
circumstances of indecency (R. v. Court (Supra).

IV. INDECENT EXPOSURE. Section 26 VAPPA

VAPPA also stipulates punishment for any person who exposes their body parts
indecently and who sends indecent pictures to another for the purpose of inducing
them to have unlawful sexual intercourse. This provision is becomes very pertinent
in the face of increasing cyber indecency and social media abuse.

By Section 26 of VAPPA:

“(1) A person who intentionally exposes his or her genital organs, or a

substantial part thereof, with the intention of causing distress to the other
party, or that another person seeing it may be tempted or induced to commit an
offence under this Act, commits an offence termed "indecent exposure".

(2) A person who intentionally exposes his or her genital organs, or a

substantial part thereof, and induce another to either massage, or touch with the
intention of deriving sexual pleasure from such acts commits an offence under
this section.

Requirements to prove indecent exposure

1.) Intentional exposure of genitals or a substantial part thereof
2.) Intent to cause distress to another party or to tempt or induce another to
commit an offence under the act to wit to massage, or touch with the intention
of deriving sexual pleasure.

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 Punishment for indecent exposure

Section 26 (3) of VAPPA provides that:”A person who commits an offence under
this section is liable to upon conviction to a, term of imprisonment of not less
than 1 year or to a fine not exceeding N500,000 or both.

V. ABDUCTION: Section 318, 362 & 225 of the Criminal Code

By virtue of Section 361 of the CC, any person who with intent to marry or
carnally know a female or any age, or to cause her to be married, or carnally
known by any other person, takes her away, or detains her against her will, is
guilty of a felony, and is liable to imprisonment for 7 years.

In the same vein, Section 362 CC provides that any person who unlawfully takes
an unmarried girl under the age of 16 years out of the custody of protection of her
father or mother, or other person having the lawful care or charge of her, and
against the will of such father or mother or other person, is guilty of a
misdemeanor, and is liable upon conviction to imprisonment for 2 years.

Section 363 CC clearly states that:

“(a)It is immaterial that the offender believed the girl to be of or above the age of
sixteen years;
(b) It is immaterial that the girl was taken with her own consent or at her own
suggestion.

With this, ignorance of the age of girls, or consent of the girl is no defence for
criminal culpability under the 2 preceding sections.

Punishment for abduction

Under Section 225 of the Criminal Code, it is an offence punishable with 2 years
imprisonment, for any person with intent that an unmarried girl under the age of 18
years may be unlawfully carnally known by any man, whether a particular man or
not, to take her or cause her to be taken out of the custody of her parents or other
person having the lawful care or charge of her, and against the will of such parents
or other person. Unlike the offence created under Section 362 CC, it is a defence to
any charge laid under Section 225 of the offender can prove that he believed, on
reasonable grounds, that the girl was of or above the age of 18 years.

VI. SEXUAL OFFENCES INVOLVING CHILDREN: DEFILEMENT OF

GIRLS (11 & 13 years; girls under 16 years and above 13 years) AND
IDIOTS: Sections 218 and 221 of the Criminal Code, Section 39 of the Penal
Code.
24 | P a g e
Section 218 of the CC provides that “any person who has unlawful carnal
knowledge of a girl under the age of 11 years is guilty of a felony, and is liable
to imprisonment for life, with or without caning. Any person who attempts to
have unlawful carnal knowledge of a girl under the age of 13 years is guilty of
a felony, and is liable to imprisonment for 14 years, with or without caning.”

However, by the same Section 218 above, the prosecution for either of the above
offences must be commenced ‘within 2 months after the offence is committed’.
The said section also provides that the accused ‘cannot be convicted of either of
the offences defined in this section upon the uncorroborated testimony of one
witness’.

In the same vein, Section 221 of the CC provides for the defilement of girls under
16 years and above 13 years and of idiots. The section provides:

“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 misdemeanor, and is liable
to imprisonment for two years, with or without caning”.

It is a defence to a charge of either of the offences firstly defined in this section of

the code to prove that the accused person believed, on reasonable grounds that the
girl was of or above the age of sixteen years.

Also by Section 221, CC, the prosecution for either of the above offences must be
commenced ‘within 2 months after the offence is committed’ and the accused
‘cannot be convicted of either of the offences defined in this section upon the
uncorroborated testimony of one witness’.

The difference in the 2 provisions is that Section 218 applies to cases of defilement
of girls under the age of 13 years while Section 221 deals with girls under 16 years
or above 13 years and also women or girls who are imbeciles or idiots.

Under Section 39 of the Penal Code, a girl below the age of 14 years cannot give
valid consent. Therefore sexual intercourse with a girl under 14 years whether she
consents or not will amount to rape. See also Section 282 of the Penal Code.

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The offence created under this section has the same ingredients as in the offence of
rape with the only exception that consent of the victim will not be a defence. Thus
unlike in the offence of rape, it is immaterial under this section whether the victim
of the offence gave her consent to the act of sexual intercourse or not.

Furthermore, the consent of an underage girl is not a defence to a charge of

unlawful intercourse; lack of knowledge of the age of the child is usually not a
defence. Under Section 218 of the CC, it is not a defence for the accused that he
reasonably believed that the girl with whom he had sexual intercourse was above
the age of 13. However, it is a defence to a charge under Section 221(1) to prove
that the accused person believed on reasonable grounds that the girl was of; or
above the age of 16. This is similar to the position under the English Law (S. 6 of
the Sexual Offences Act, 1956). This position has changed under Nigerian law
with the CRA. Since 2003 when the Act came into force, the belief that the
offender believes the child to be above the age of 18 is immaterial (Section 31(3) f
the CRA).

The rationale for the offence of defilement is to protect children who, while they
may have sufficient knowledge and understanding to give a valid consent (so that
rape is not committed), are easily open to persuasion and exploitation because of
their young age (Section 5(1) of the sexual offences Act 1956).

Since under the CC, sexual intercourse with under aged girls or people with
unsound mind is the offence of defilement, so technically a person could be
charged for rape and defilement.

Requirements to prove defilement of girls and idiots

1. The accused person must have had carnal knowledge of the victim (Complete
upon Penetration)
2. The carnal knowledge must be unlawful: By S.6 of the CC carnal knowledge
is unlawful when it takes place otherwise than between a husband and a wife.
This interpretation of the word ‘unlawful’ in S. 6 is doubtful in the light of the
Provisions of S. 31 of the Child Rights Act (CRA) 2003, Cap C23, LFN 2004.
S. 31 of the Act provides that no person shall have sexual intercourse with a
child and a child is defines as a person who is below 18 years and below.
Before the enactment of the CRA, if a girl below the age of 13 was lawfully
married to a man who had sexual intercourse with her, the man would not be
guilty of the offence of ‘defilement’ or ‘rape’. However, with the above
provision in the CRA 2003, it is doubtful if a person married to a girl under the
age of 18 would not be liable if he had sexual intercourse with her.

26 | P a g e
3. The victim must be a girl under 16 years

Punishment for the offence of defilement

The punishment for defilement under Section 218 is life imprisonment, with or
without caning. (S. 218 CC).

The punishment for defilement under Section 221 is a term of imprisonment for 2
years, with or without caning. (S. 221 CC).

The offence is so despicable such that it warranted a notable pronouncement in the

recently decided case of Edwin Ezigbo v. The State (2012) 16 NWLR Pt 1326 where
My Lord Justice Muhammed J.S.C had this to say;

“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 32years. 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 offers 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”.

Similarities between the offence of rape and defilement under the Nigerian Criminal
Laws

The only similarity between the offence of rape and defilement is that there must be
penetration into the vault of the vagina. The prosecution has the burden to prove that the
accused had sexual intercourse with the prosecutrix.

Distinction between the offence of rape and defilement under the Nigerian Criminal Laws

The differences between the two offences are:

Firstly, the offence of defilement involves a Girl under the age of 11 years while rape
affects a female at or above the age of 11. By the foregoing, it is a well laid down

27 | P a g e
 position of law that a child below 11 years cannot be raped.[12] However, the age bracket
slightly differs in some jurisdictions.

Secondly, in a charge of rape or unlawful carnal knowledge of a female without her

consent, the prosecution has a duty to prove 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; or that the prosecutrix was not the wife of the accused or that
the accused acted recklessly not caring whether the prosecutrix consented or not; on the
other hand, for defilement it is immaterial whether the act was done with or without the
consent of the child. This is the well laid down position of the law, that a girl under the
age of 11 is a child and so is not capable to consenting to sex. The court would hold that
she did not consent even if she did consent because a child cannot consent to sex, that is
the position of the law.1

Lastly, in a charge of defilement, the evidence of the child must be corroborated.

Corroboration is independent evidence that confirms or makes more certain the testimony
of the child and may be admission by the accused person that he committed the offence,
or circumstantial evidence, or medical evidence. In Lucky V. State,2 the Supreme Court
held that "In cases of an under-aged prosecutrix, e.g., a charge under Section 218
(Defilement of girls under thirteen years) corroboration is required. Whether any
particular evidence can be corrobroration is for the judge to decide and also to decide the
weight to be attached to it. In this regard the distressed condition of the prosecutrix soon
after the unlawful sexual intercourse may amount to corroboration.3

To me, defilement/child abuse is child rape!

VII. INCEST:
Section 390 of the Penal Code, Section 25 of VAPPA
Incest is defined by the Black’s Law dictionary, 2 nd Edition, as “the crime of sexual
intercourse or cohabitation between a man and woman who are related to each
other within the degrees wherein marriage is prohibited by law.
Section 46 of the VAPPA (the interpretation Section, defines incest as: "incest"
means an indecent act or an act which causes penetration with a person who
is, to his or her knowledge, his or her daughter or son, granddaughter or
son, sister or brother, mother or father, niece or nephew, aunt/uncle,
grandmother or granduncle;”

There are many propositions for the purpose of the law of incest. While it is said
that within the family unit it is as far as blood relationship is concerned, to prevent
1
Boniface Adonike V. The State (2015) LPELR-24281(SC)
2
(2016) LPELR-40541(SC)

3
See R v. Redpath (1962) 46 Arp R p. 319

28 | P a g e
genetic risk which may be attached to conception. At the same time, it is contended
to be a reproduction of social and cultural norms. It is also said to conform to
religious principles (Lev. 18:6-18). In the light of recent concerns about sexual
abuse occurring in the family, incest is not simply a question of morality but one of
protection. Under the customs of most societies in Nigeria, incest is a taboo and
marriages between persons who are related by blood, no matter how remote the
relationship is forbidden.

Incest is frowned upon both at Civil law (The Matrimonial Causes Act forbids
marriages between person of affinity and consanguinity) and under the Criminal
Law. Under the Criminal Code, incest is not an offence but it is by virtue of
Section 390 of the Penal Code. The said section states as follows: “Whoever being
a man has sexual intercourse with a woman who is and whom he knows or has
reason to believe to be his daughter, his grand - daughter, his mother or any
other of his female ascendants or descendants, his sister or the daughter of his
brother or sister or his paternal or maternal aunt and whoever being a
woman voluntarily permits a man who is and whom she knows or has reason
to believe to be her son, her grandson, her father or any other of her male
ascendants or descendants, her brother or the son of her brother or sister or
her paternal or maternal uncle to have sexual intercourse with her, shall be
punished with imprisonment for a term which may extend to seven years and
shall also be liable to fine.

EXPLANATION. In this section words expressing relation include relatives of the

half blood and relatives whose relation is not traced through a lawful marriage”.

By Section 25 of VAPPA,”A person who knowingly and willfully have carnal

knowledge of another within the prohibited degrees of consanguinity and
affinity contained in the Schedule to this Act with or without consent,
commits incest and is liable on conviction to a minimum term of-

(a) 10 years imprisonment without an option of fine,

(b) where the two parties consent to commit incest, provided that the consent
was not obtained by fraud or threat, 5 years imprisonment without an option
of fine.
Where incest is not an offence, it is nonetheless not tolerated.

Requirements to prove incest

1. There must be sexual intercourse: the sexual intercourse is the actus reus. The
physical act of the offence of incest is the sexual intercourse between the victim

29 | P a g e
 and the accused person which is only complete upon proof of penetration.
Incest does not apply to sexual acts short of penetrative sexual intercourse.
Therefore indecent exposure, fondling, finger insertion, oral sex and sodomy
cannot form the actus reus of incest.

2. The sexual intercourse was between a man and a woman: the intercourse must
be between opposite sexes and both a man and a woman can be liable.

3. There must be an existing relationship between the parties as defined by

the Code: The parties must fall within one of the prohibited relationships listed
in the Penal Code, Section 390 provides that the relationship includes relatives
of half blood and relatives whose relationship is not traced through a lawful
marriage. Incest therefore covers the relationship of half brother and sister. In
the Ugandan case of Bassruigahara v. Uganda (Unreported), a man was
convicted of incest with his daughter. He had lived with a woman for 17 years
before the alleged offence and they never got married; the woman left his house
pregnant. She delivered a girl and when the said daughter was 12 years old, she
came to live with the defendant (her father) and she became pregnant through
acts of sexual intercourse with her.

For adoptive relationships, the issue has not been brought up in a court in
Nigeria but it has been argued that since an adoptive child is treated as a natural
child in the family, it should be an offence to have sexual intercourse with the
adopted person moreso when it has been argued that one of the aims of the law
is to protect sexual exploitation of vulnerable members. Therefore the law
should be extended to such relationship.

4. The accused must have knowledge of the relationship: Knowledge of the

relationship is an essential element of the offence of incest. The accused must
know or have reason to believe that the person he or she is having sexual
intercourse with is related to him or her as listed in Section 390. Section 18 of
the Penal Code defines ‘reason to believe”. It therefore follows that the lack of
knowledge that the person with whom one is having sexual intercourse is a
relative is a defence. Where the accused is a man and he has knowledge of the
relationship, consent to the sexual intercourse is not a defence.

Capacity

By Section 50 of the Penal Code, no act is an offence which is done by a child

under 7 years of age or by a child above 7 years but less than 12 years who has not
attained sufficient maturity of understanding to judge the nature and consequence
30 | P a g e
 of such act. A child in this age bracket cannot be guilty of incest. By virtue of the
Child Rights Act, a girl under 18 years cannot consent to sexual intercourse. Also,
where the other party to the incest is under 14 years and gives consent, the consent
is invalid. Under the Penal Code, the age of the victim of incest is irrelevant.
However, where the victim/relation is a female under the age of 14 years, sexual
intercourse with her will be rape.

Punishment for the offence of incest

By Section 390 of the Penal Code, the punishment for the offence of incest under
the Penal Code is a term of imprisonment that may extend to 7 years and also
payment of a fine.

By Section 25 of the VAPPA, the punishment for the offence of incest is 10 years
imprisonment without an option of fine. Where however the two parties
consent to commit incest, provided that the consent was not obtained by
fraud or threat, 5 years imprisonment without an option of fine.

VIII. OFFENSIVE CONDUCT: Section 5 of the VAPPA

Section 5.

(1) : A person who compels another, by force or threat to engage in any conduct
or act, sexual or otherwise, to the detriment of the victim's physical or
psychological well-being commits an offence and is liable on conviction to a
term of imprisonment not exceeding 2 years or to a fine not exceeding
N500,000.00 or both.
(2) A person who attempts to commit the offence provided for in subsection (1)
of this section commits an offence and is liable on conviction to a term
of imprisonment not exceeding 1 year or to a fine not exceeding
N300,000.00 or both.
(3) A person who incites, aids, abets, or counsels another person to commit the
offence provided for in subsection (1) of this section commits an offence
and is liable on conviction to a term of imprisonment not exceeding 1
year or to a fine not exceeding N300,000.00 or both.
(4) A person who receives or assists another who, to his or her knowledge,
committed the offence provided for in subsection (1) of this section is an
accessory after the fact and is liable on conviction to a term of
imprisonment not exceeding 3 years or to a fine not exceeding N500,000.00
or both.

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IX. UNNATURAL OFFENCES: SECTION 214 & 215 OF THE
CRIMINAL CODE, SECTION 81 OF THE ARMED FORCES ACT,
SECTION ……OF THE SAME SEX PROHIBITION ACT
Unnatural offences are unlawful acts committed against the order of nature such as
having carnal knowledge of an animal. Others include sodomy and other related
offences. Section 214 of the CC provides:
“Any person who-
(1) Has carnal knowledge of any person against the order of nature or
(2) Has carnal knowledge of an animal; or
(3) Permits a male person to have carnal knowledge of him or her against the
order of nature; is guilty of a felony, and is liable to imprisonment for
fourteen years.
Under Section 215 of the CC, an attempt to commit an unnatural offence is also an
offence which is punishable.
Although the term ‘unnatural offence’ is not defined in the Code it has been
suggested that offences under this heading will include sodomy, buggery and
bestiality. The Oxford Advanced Leaner’s dictionary at page 1130 defines Sodomy
as “a sexual act in which a man puts his penis into somebody’s (especially another
man’s) anus.

Section 81 of the Armed Forces Act criminalizes acts which are “against the order
of nature”.

The Same Sex Marriage (Prohibition) Act 2014 signed into law by the former
President Goodluck Jonathan in 2014 also criminalises homosexual behavior. It
provides in its explanatory memorandum: “This Act prohibits a marriage contract
or civil union entered into between persons of same sex, and provides penalties for
the solemnization and witnessing of same thereof.” It goes on to provide in Section
5(1), (2) & (3) as follows:

(1) A person who enters into a same sex marriage contract or civil union
commits an offence and is liable on conviction to a term of 14 years
imprisonment.

(2) A person who registers, operates or participates in gay clubs, societies and
organization, or directly or indirectly makes public show of same sex
amorous relationship in Nigeria commits an offence and is liable on
conviction to a term of 10 years imprisonment.

(3) A person or group of persons who administers, witnesses, abets, or aids the
solemnization of a same sex marriage or civil union, or supports the

32 | P a g e
 registration, operation and sustenance of gay clubs, societies, organizations,
processions or meetings in Nigeria commits an offence and is liable on
conviction to a term of 10 years imprisonment.
The Same Sex Marriage Prohibition Act also criminalizes homosexual clubs,
associations and organizations, with penalties of up to 14 years in jail.

See Magaji v. Nigerian Army (2008) 8 NWLR (PT 1089), 338/2008 LPELR
1814 (SC).
The fact involves sodomy, now known as homosexuality. It is against former
Major Bello Magaji, staff No. N/6604 of the Nigerian Army.
Augustine Oscar Ayewa ‘Oscar’, an errand boy to Magaji, upon Magaji’s
instruction contacted one Joseph Unigbe (PW2) for the ‘business’. Joseph
needed the company of his friend Emmanuel Enega (PW1), a student of Army
Cantonment Boys School, Ojo, Lagos and he asked him to join him in the
outing. Emmanuel Enega was 17 years old when he testified. The common
evidence of Emmanuel and Joseph is that they were asked to drink a bottle
each of small stout which intoxicated them. It was in their state of intoxication
that the appellant perfomed the act of sodomy on Emmanuel and the others.
The General Court Martial convicted the appellant and sentenced him to 7
years imprisonment. His appeal to the Court of Appeal was dismissed. He
appealed to the SC who held:
“In my respectful view, by putting or inserting his penis into the anus of the
PW1, it amounts to having carnal knowledge of him and this act is against the
order of nature and therefore, amounts to the said offence of sodomy contrary
to Section 81(a) of the Armed Forces Act”.
Per Niki Tobi, JSC (of Blessed Memory):
“The offence of sodomy is an unusual, abnormal and unbelievable one. what
the appellant decided to do was to dare nature in his craze for immoral
amorphous satisfaction. By his conduct the appellant reordered God’s
creation. Has he got the power to do that? No. no human being, whether in the
military or not, has the power to reorder God’s creation. After all, we are not
talking of fighting a war. By his conduct, the appellant has brought shame to
himself. Although a bit of the dent is on the Army, I am not prepared to hold
the Force guilty of the offence of the appellant. The Army did not ask him to
commit this heinous and atrocious offence. He is a terrible criminal. And he is
alone, clearly alone. This case clearly brings to the open the problem of
poverty in our society, not just poverty but abject poverty. It is in evidence
that the victims were hired with money. Parents should try as much as they
can to provide for the needs of their children. And when I say this I am not
unaware or oblivious of the fact that some children are not satisfied even if
33 | P a g e
their parents supply all their needs because of their insatiable growing and
glowing gluttony for more and more, like Oliver Twist of literary fame.
Section 81 of the Armed Forces Decree criminalizes acts which are “against
the order of nature”. The Decree does not define carnal knowledge. Section 6
of the Criminal Code Act defines carnal knowledge or the term carnal
connection and implies that the offence is complete upon penetration. While
carnal knowledge is an old legal euphemism for sexual intercourse with a
woman, it acquires a different meaning in section 81. The section 81 meaning
comes to light when taken along with the proximate words: “against the order
if nature”. The order of nature is carnal knowledge with the female sex.
Carnal knowledge with the male sex is against the order of nature and here,
nature should mean God and not just the generic universe that exists
independently of mankind or people. Where there is s hole or an opening,
there will be the possibility of penetration, penetration being the ability to
make a way or way into or through. While the common usage of the word
mean putting of the male organ into the female sex organ when having sex, it
has a more notorious meaning and that meaning is in section 81. The natural
function of the anus is the hole through which solid food waste leaves the
bowels, and not for penis penetration. That is against the order of nature, and
again, that is what Section 81 legislates against.”

CORROBORATION IN SEXUAL OFFENCES

One of the most controversial issues regarding sexual offences especially those
involving teenage girls, is the requirement of corroboration. These offences as
listed under sections 218, 221, 223 and 224 of the CC specifically provides that a
person cannot be convicted upon the uncorroborated testimony of one witness. The
term ‘uncorroborated testimony’ is defined under section 1 of the CC as meaning
testimony which is not corroborated in some material particular by other evidence
implicating the accused person. Even in other cases, the courts have always
regarded it as unsafe to convict on the uncorroborated evidence of the complainant
only.
If the requirement of corroboration were to be applied loosely – and in some cases
it has been – then it will be difficult for a young girl of 12 years raped and dumped
in a deserted location by an evil man to establish a case of defilement against the
man even where she is able t identify the man and remember all the details of the
gory act. The case of Sambo v. The State 91993) 6 NWLR (PT 300) 399 clearly
illustrates this absurdity. The facts of the case where:
The appellant was charged at the trial court with raping a 10 year old girl in his
bedroom. The case of the prosecution was that the girl was asked to fetch water for
the accused which she did. But as she brought the pail of water, the accused invited
her to his room, locked the door and put on his music set. He then removed the
girl’s dress, forced her onto his bed and tried unsuccessfully to put his penis inside

34 | P a g e
her vagina. When the girl started crying, he unlocked the door of his room and let
her go, pleading for her forgiveness “so that his name would not be spoiled”.
The girl later narrated the incident to her senior sister who reported the matter to
the police. The accused person who, unfortunately happened to be a legal
practitioner, was arrested and charged to court. He admitted sending the girl to go
and fetch water and that he started dancing with her when she brought the water.
He said further, in his evidence, that later the girl started crying and said she did
not like what he was doing to her. He said he then left her and she departed. He
denied forcing himself on her, although a medical report obtained from the General
Hospital, Gombe, into which the girl was admitted for treatment after the incident,
showed that blood was found on her private part.
The trial court convicted the accused of the lesser offence of attempted rape and
sentenced him to 6 months imprisonment plus N1,000 fine. Dissatisfied, the
appellant appealed to the SC, contending inter alia, that the trial court did not
sufficiently conduct preliminary investigation prescribed by sections 180 and 182
of the Evidence Act (now 205 & 208 of the EA as amended 2011); that the
evidence of PW1, the prosecutrix, required corroboration and that the
circumstantial evidence relied upon by the trial judge to convict him was not
cogent enough. The Supreme Court in allowing the appeal, held, inter alia, thus per
Olatawura JSC at page 422: “It is settled law that to ground a conviction based
on the unsworn testimony of a child, such unsworn evidence of the child must
be corroborated. It is therefore risky and unsafe to convict an accused person
on the uncorroborated evidence of a child”.
Wali JSC AT Page 421 of the report also held thus: “It is the law that before
prosecution can secure conviction for the offence of rape, the evidence of the
prosecutrix (the victim of the rape) must be corroborated in some material
particular that sexual intercourse did take place and that it was without her
consent”.
It must be noted however that the Sambo case did not lay down a general rule that
in all sexual offences, an accused person should not bec onvicted on the
uncorroborated evidence of the prosecutrix. This point was stated clearly in a later
decision of the Supreme Court in Oladotun Ogunbayo v. The State (2007) 8
NWLR (PT 1035) 157 where Ogbuagu JSC held thus:
“Corroboration is not required except where the law demands it. Evidence of
corroboration of the evidence of the victim in a rape case is not required as a
matter of law. In other words, in the cases of a sexual character, it is
eminently desirable that the evidence of the complainant should be
strengthened by other evidence implicating the accused in some material
particular. It is however not a rule of law that an accused person in charge of
rape cannot be convicted on the evidence of the prosecutrix”.

35 | P a g e
The law then seems to be that an accused person in a rape case can be convicted
based on the uncorroborated evidence of the prosecutrix only, especially if the
judge is satisfied of the truth of her testimony, but the judge must nevertheless
warn himself that it is unsafe to do so. However, if the prosecutrix is a young girl
or a woman within the contemplations of Sections 218, 221, 223 and 224 of the CC
then by the combined effect of the aforementioned sections and Section 179(5) of
the Evidence Act, the judge cannot convict an offender of a charge or rape or
sexual assault upon the uncorroborated evidence of the prosecutrix only (See again
Sambo v. State (Supra).
The unfortunate decision of the Supreme Court on the Sambo case is largely a
problem of law. Both the trial court and the Court of Appeal were in fact wrong in
convicting the appellant of attempted rape. It is indeed a pity that the law has not
done enough to protect young girls against randy men who go about defiling them.
The Justices shut their eyes to the fact that most, if not all sexual offences are
committed in the secret and that the victims more often than not, may not even be
willing to proceed against the offenders for fear of societal stigma. Worse still, a
few of them who have courage to do so may be afraid that the court may not
believe their stories, if not corroborated. Happily, the Supreme Court has, per Niki
Tobi JSC (of blessed memory) in the Sambo case, stressed the need for a review of
the requirement of corroboration, particularly as it affects defilement of young
girls. His Lordship lamented thus:
“In all practicality, what evidence of corroboration is really needed in the
offence of rape? In most cases, the offence is committed in private. Although
in some cases, the shout and call for assistance of the prosecutrix attract the
public, and that is not a regular phenomenon. After all, the prosecutrix herself
may not like to be seen by the public when the act of rape is committed. She
would rather prefer reporting the rape after the act. And so it is difficult to
secure corroboration from evidence of an eye witness. That is the more reason
why it is difficult to secure evidence of corroboration that the accused inserted
his penis into the vagina of the prosecutrix. If our adjectival law requires
corroboration (a point I am not prepared to concede), then corroboration can
be deduced from inter alia the denials of the accused, the last opportunity the
accused had to commit the offence, medical evidence of the examination of the
prosecutrix confirming the allegation of recent forcible coitus and the
existence of recent semen in the vagina of the prosecutrix directly traceable to
the accused”.
The Hon. Justice Tobi invited the Supreme Court to take another serious look at
the law of corroboration in sexual offences. He stated further thus:
“I realize that the law of corroboration in the offence of rape is in some flux or
state of confusion. It is hoped that this court will have an opportunity in the
future to look at the decisions on the issue”.

36 | P a g e
 It is not certain whether the SC has had an opportunity to look at its decision on the
issue but the point made by Justice Tobi that the law of corroboration vis-à-vis
offences of sexual character is confusing is true. As we await the SC to clear this
ambiguity, it is suggested that the NA should immediately begin the process of
amending the CC to remove this outdated clause that says that in offences of
sexual character, an accused person cannot be convicted upon the uncorroborated
testimony of one witness.
Summary of punishments for sexual offences
Sexual Offence Punishment

I. Rape Life imprisonment, with our without caning

VAPPA: Life imprisonment except (a)

where the offender is less than 14 years of
age, the offender is liable to a maximum of
14 years imprisonment; (b) in all other
cases, to a minimum of 12 years
imprisonment without an option of fine; or
(c) in the case of rape by a group of
persons, the offenders are liable jointly
10 a minimum of 20 years imprisonment
without an option of fine.

II. Attempted Rape: Imprisonment for fourteen years, with or

without caning”.
III. Indecent Assault: Assault on a boy under the age of fourteen
years:imprisonment for 7 years.

 Commission of any act of gross indecency

by a male with another male person, whether
in public or private or procures of another
male person to do same: imprisonment for
three years. The offender cannot be arrested
without warrant.
 Indecently dealings with a girl under the
age of sixteen years: imprisonment for two
years, with or without caning. If the girl is
under the age of thirteen years, he is liable
to imprisonment for three years

37 | P a g e
  Causing or encouraging the seduction,
unlawful carnal knowledge or prostitution
of, or the commission of an indecent assault
upon, such a girl under your custody:
imprisonment for 2 years.
 Gross Indecency under the Penal Code is
punishable with 7years imprisonment.
 Unlawful and indecently assault a woman or
girl: imprisonment for 2 years.
IV. Indecent Exposure: Imprisonment of not less than 1 year or to
fine not exceeding N500, 000 or both

V. Abduction Imprisonment for fourteen years.

VI. Defilement Under Section 218 is life imprisonment,

with or without caning. Under Section 221,
a term of imprisonment for 2 years, with or
without caning.

VII. Incest: Penal Code: Imprisonment for a term which

may extend to seven years and shall also be
liable to fine.

VAPPA: The punishment for the offence of

incest is 10 years imprisonment without an
option of fine. Where however the two
parties consent to commit incest, provided
that the consent was not obtained by fraud
or threat, 5 years imprisonment without
an option of fine.

VIII. Offensive Conduct: VAPPA: Compelling another, by force or

threat to engage in any conduct or act,
sexual or otherwise, to the detriment of the
victim's physical or psychological well-
being: a term of imprisonment not exceeding
2 years or to a fine not exceeding
N500,000.00 or both.

38 | P a g e
  Attempt to commit the offence:
imprisonment not exceeding 1 year or to a
fine not exceeding N300,000.00 or both.
 Inciting, aiding, abetting, or counseling
another person to commit the offence:
imprisonment not exceeding 1 year or to a
fine not exceeding N300,000.00 or both.
 Receiving or assisting another who, to his or
her knowledge, committed the offence:
imprisonment not exceeding 3 years or to a
fine not exceeding N500,000.00 or both.
IX. Unnatural Offences Imprisonment for 14 years.

Criticism of the provisions on rape under both codes raises at least four issues:

(1) The offence of rape is gender specific, only men can commit the offence of
rape;
(2) The act amounting to rape is limited to penile penetration of the vagina – anal
or oral sex or penetration using objects or other parts of the body such as the
tongue or finger, do not constitute sexual intercourse for the offence of rape
except under VAPPA; and

(3) Marital rape – both codes provide (with certain exceptions) that sexual
intercourse between a husband and wife cannot constitute the offence of rape.

(4) Men cannot be raped only sodomized: Can a man be raped? I think yes as
consent to sexual intercourse should be the key determining factor.

The Violence Against Persons (Prohibition) Act. The Act recognises that males
can be raped.

Under the Act, 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;
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

39 | P a g e
 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.
The following can be deduced from the law:
1. A man can be raped
2. The rapist can be either a man or a woman

3. The offence of rape is complete upon the penetration of the anus or even
mouth of the male victim by the rapist with any other part of his body or
anything whatsoever. This means that the penetration of the anus or mouth
of the male victim with any kind of instrument or object qualifies as rape.

4. The hallmark of rape is the absence of consent; thus once the victim does
not consent, or his consent is obtained by force, threat, intimidation, or by
fear of harm, or false or fraudulent misrepresentation as to the nature of the
act, or as a result of the use of any substance or additive capable of taking
away the will of such a person or in the case of a married person by
impersonating his spouse, then the act could qualify as rape.

5. A male rape victim now has a remedy in law against his abuser.

ALTHOUGH APART FROM THE VAPPA, OTHER CODES DO NOT

PROVIDE THAT A MAN CAN BE RAPED BUT THERE ARE OTHER
PROVISIONS PROTECTING MEN FROM SEXUAL
EXPLOITATION/ABUSE:
1. UNNATURAL OFFENCES/SODOMY

Section 214(1) of the Criminal Code Act provides that “any person who has
carnal knowledge of any person against the order of nature is guilty of felony
and is liable to imprisonment for fourteen years”.

The provisions of section 214(1) of the Criminal Code Act which is similar to
section 81(1)(a) of the Armed Forces Act has been recognised by the Supreme
Court as criminalising Sodomy in MAGAJI V. NA (SUPRA). It is apt to
reproduce the pronouncement of the Supreme Court on this point. The Supreme
Court while stating what amounted to sodomy stated as follows:

In my respectful view, by putting or inserting his penis into the anus of the pw1,
it amounts to having carnal knowledge of him and this act is against the order of
nature and therefore amounts to the said offence of sodomy……… If any man
is guilty of this type of offence, though he cannot be prosecuted for the offence
of rape, (Except under the Violence Against Persons (Prohibition) Act) he can
be prosecuted for the offence of sodomy.
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 This is a laudable provision as it affords some kind of protection to men against
sexual abuse by their fellow men.

The punishment for sodomy is 14 years imprisonment, while an attempt to

commit the offence of sodomy carries a 7 year prison term.
2. INDECENT TREATMENT OF BOYS UNDER FOURTEEN YEARS
Section 216 of the Criminal Code Act states that “any person who unlawfully
and indecently deals with a boy under the age of fourteen years is guilty of a
felony and is liable to imprisonment for seven years”. The law went further to
state that the term “deal with” includes doing any act which, if done without
consent would constitute an assault.

The provision of this section is wide enough to accommodate a wide range of

acts which constitute sexual abuse. This section is also wide enough to
accommodate sexual abuse perpetrated by both females and males on young
boys below the age of fourteen.

Acts which can come under this section include but is not limited to; touching
the boy’s genitals, the abuser forcing the child to touch his own genitals,
indecent touching of the boy’s body, or the abuser compelling the child to touch
his or her own body, (whether clothed or not) engaging in sexual activity in the
presence of the child, compelling the child to watch pornography or read
pornographic materials, kissing e.tc.

As earlier stated the punishment for indecently dealing with a boy under 14
years is an imprisonment term of 7 years.

3. INDECENT ASSAULT ON MALES

Section 353 of the Criminal Code Act provides that “any person who unlawfully
and indecently assaults any male person is guilty of a felony and is liable to
imprisonment for 3 years.

This section covers both adult males and male children. This section is also
wide enough to cover a wide range of acts which constitute sexual assault. Thus
any kind of unwanted and unsolicited touching, which does not accord with
decency, is punishable under this section.

4. ASSAULT WITH INTENT TO COMMIT UNNATURAL OFFENCES

Section 352 of the Criminal Code Act also provides that “any person who
assaults another with intent to have carnal knowledge of him or her against the

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 order of nature is guilty of a felony and is liable to imprisonment for fourteen
years.”
5. UNLAWFUL SEXUAL INTERCOURSE WITH A CHILD
This is applicable to children only and not the adult male. Under the Child’s
Right Act, a child is defined as a person under the age of eighteen years.
Section 31 of the Child’s Right Act prohibits any person from engaging in
sexual intercourse with a child. Any person who engages in such intercourse
with the child is deemed to have committed the offence of rape and liable to
imprisonment for life if convicted. The section further provides that it is
immaterial that the child consented or that the person thought the child has
attained eighteen years or is above eighteen years.

6. OTHER FORMS OF SEXUAL ABUSE AND EXPLOITATION

Section 32 of the Child’s Right Act also provides that a person who sexually
abuses or sexually exploits a child in any manner not already mentioned under
the Act commits an offence and a person who commits an offence under this
section is liable on conviction to imprisonment for a term of fourteen years.

This provision is very elaborate as it can accommodate any act whatsoever

which amounts to sexual abuse or sexual exploitation of the male child.
Examples of acts which can come under this section include but is definitely not
limited to; child prostitution, child trafficking for prostitution, child
pornography, indecent sexual assault e.tc. The list is endless.

It is evident from the foregoing that the law provides some measure of
protection against sexual abuse in its varying forms for the males, this however
does not obliterate the need to broaden the scope of the protection currently
afforded males under the law.

The Sexual Offences Bill 2013, which was passed by the National Assembly but
was never assented to by the President. The National Assembly has also chosen not
to force the Bill into law by overriding the need for the President’s assent. The bill
expanded the definition of rape to cover both genders; in other words, under the
bill a woman is capable of committing the offence of rape. It also provided for a
sexual assault offence for non-genital penetration, i.e., penetration with mechanical
objects or other parts of the body like the finger or tongue. There was some
controversy surrounding the bill particularly over the age of sexual consent. The
provisions in section 7 of the bill were misinterpreted as reducing the age of sexual
consent to age 11 and the entire bill was resisted. This may have informed the
President’s reluctance to give his assent and sign it into law.

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The Violence Against Persons (Prohibition) Act (VAPPA) of 2015, which,
unfortunately, applies only to the Federal Capital Territory, Abuja. VAPPA also
expands the definition of rape to include both genders as capable of committing the
offence of rape.

Neither the Sexual Offences Bill nor VAPPA addresses concerns about marital
rape. However, Lagos State has a domestic violence law that takes sexual offences
beyond unlawful “carnal knowledge” and, in my thinking, prepares the ground for
future prosecution of marital rape in Lagos State. This Lagos State law [The
Protection Against Domestic Violence Law (2007)] was enacted to “provide
protection against domestic violence and for connected purposes.”

The law defines domestic violence as any of the following acts – “physical abuse;
sexual abuse exploitation including but not limited to rape, incest and sexual
assault; starvation; emotional, verbal and psychological abuse; economic abuse and
exploitation; denial of basic education; intimidation; harassment; stalking;
hazardous attack including acid bath with offensive or poisonous substance;
damage to property; entry into the complainant’s residence without consent where
the parties do not share the same residence; or any other controlling or abusive
behaviour towards a complainant, where such conduct harms or may cause
imminent harm to the safety, health or well-being of the complainant; and
deprivation.” (Emphasis, mine)

The law goes further to define sexual abuse as, “any conduct that abuses,
humiliates, degrades, or otherwise violates the sexual integrity, or dignity of the
victim.”It would be interesting to see how lawyers and the courts in Lagos put this
law to use, and whether other states will follow in the steps to Lagos to disturb the
illusion that a wife gives an irrevocable, unqualified, consent to sexual intercourse
once she enters into a marriage.

For now, under Nigerian criminal law, a man may be charged with assault,
depending on the circumstances under which he has sexual intercourse with his
wife, but he cannot be charged with raping his wife.

CONCLUSION

Rape is condemnable, it is an unjustifiable act in our society and it is, finally, time
that we rise as a nation to condemn and eradicate this despicable act.

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Victims of rape are made to suffer unquantifiable anguish, some become diagnosed
with post-traumatic stress disorder, dissociation from reality, depersonalization,
they endure physical violence, avoid social life, get infected with sexually
transmitted infections, encounter serious difficulty in remembering events, relives
moments of sexual assault and unwanted pregnancy amongst other ills.

Rape is so despicable such that it warranted a notable pronouncement in the

recently decided case of Edwin Ezigbo v. The State (2012) 16 NWLR Pt
1326 where My Lord Justice Muhammed J.S.C had this to say;

“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
32years. 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 offers 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”.

The severity of the offence of rape cannot be over emphasized. Little wonder why
a lot of pundits have advocated strict punishments for the offence.

In the case of Popoola v State (2013) 17 NWLR (Pt 1382) P. 100Per Muntaka-
Coomasie J.S.C at page 120 paras G-H on rape said:

“the offence appeared to be heinous and heartless. The sentence meted

out by the trial court amounts to abdicating its role as a judicial officer.
I condemn such type of sentence. The sentence is unnecessarily lenient
and loose”.

In the same light, Per Ngwuta J.S.C AT PAGE 12, Paras D-E said

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 “I join my learned brother in expressing disappointment that the
appellant was given a lenient term of five years in prison. I think that
the severity of punishment for rape, with particular reference to
statutory variety, should rank next to capital punishment”.

We have seen so far that Nigerian laws needs to make a departure from the
traditional concepts of rape to accommodate the changing nature of this societal
menace. The VAPPA which is a more modern and progressive law is only
applicable in Abuja.

It is pertinent to note that it is only a fraction of rape cases that are reported. Many
victims are too scared to open up as sadly, most perpetrators are persons very well
known to them. There’s also the fear of being stigmatized as being victims of rape.
The point though is that the culture of silence does not help anyone. Rather it
shields the rapist and emboldens him/her to simply look for the next victim. What
then should be done of one is faced with the danger of being raped?

1. It’s ok to scream! The last thing a rapist wants is to be caught. Hence, drop all
sophistications and scream! They will more often stop and run away.

2. It’s ok to defend yourself. Although it may appear difficult, putting in some

defence maybe the critical element needed to buy time before help comes.

3. In the unfortunate event of a rape, do not keep quiet. As with most crimes,
there’s the ‘golden hour rule’ i.e. the first hour being the most critical to gather
sufficient evidence, track down a criminal and get adequate medical care. So,
contact the police, the state designated rape assistance unit, the several
organizations and private support centres.

Reporting rape can be a very emotional and difficult thing to do, so you should
consider getting support from a close confidant/friend or organisations like Mirabel
Centre – http://mirabelcentre.org/ , where rape and sexual assault victims can get
access to forensic medical assistance, and more importantly professional
counselling services. They are located at Lagos State University Teaching Hospital
(LASUTH) Ikeja, Lagos, and are open from 9am – 5pm – Monday – Friday, and
10am – 4pm on weekends & Public Holidays. They can also be reached on these
numbers: 07013491769, 01-2957816, 08176275732, 08176275695; and on
Twitter: @MirabelCentreNG and Facebook: www.facebook.com/MirabelNigeria

While we await more progressive laws to combat this crime, each and everyone
has a role to play in combating this societal menace. We must also learn to give
support to victims and stop the stigmatization.

CASE LAW

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WHAT IS SEXUAL ABUSE: Sexual abuse/assault/harrassment generally refers to any
kind of non-consensual sexual contact. It refers to any sexual activity that a person
engages in as a result of the use of threat, intimidation or coercion used by the abuser on
the victim. The Violence Against Persons (Prohibition) Act 2015 defines sexual abuse to
mean any conduct which violates, humiliates or degrades the sexual integrity of any
person. Sexual abuse could take several forms, but our law recognises only a few of them
as the law on sexual abuse especially of males is highly underdeveloped in Nigeria.

CONCLUSION

Though rape as over the years been categorized into various categories namely
acquaintance rape, command rape, date rape, incestuous rape, fraud rape, underage rape,
statutory rape, gang rape and marital rape just to mention a few, the big question is why
is there a low rate of rape prosecution cases?

The writer has identified some of the reasons as follows:

1. Stigma and the resultant Inability of victims to report cases to the police: This
can be seen from the shame or neglect shown towards rape victims in Nigeria by
family and friends. It ranges from openly mocking the victims to being neglected
by close family members and friends. In some cultures, some are even seen as
having brought shame and dishonor to the family.

There is a general lack of support from care agencies of government who should
not ordinarily encourage these victims but also re-engineer a systemic re-
integration of victims into the society.

Considering the statistics of decided cases on rape at the Court of Appeal and
Supreme Court, a cursory look shows that most reported instances of rape are from
underage children who do not usually understand the very nature of the offence.
Most adults rather choose to suffer in pain and anguish due to the social stigma
attached to it.

2. Lack of proper investigation: There is a general apathy on the part of the Police
institution. A typical example will be that of a victim approaching a police station
and the police officers insist on laying the complaint over the counter without
trying to conceal her identity or guaranteeing her privacy or possibly requesting
information that is not central to the genuine complaints.

As far as I am concerned, apart from the delay in commencing investigation or

total lack of, the police institution is not adequately equipped in both human and
material resources to effectively investigate rape cases.

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 There is a lack of specialized training for police officers in handling these cases or
in providing support for the victims. Furthermore, forensic identification of
suspects cannot be effectively carried out, the use of biological evidence such as
blood, semen, saliva, vagina epithelial cells etc is totally lacking. There is serious
doubt as to the existence of a functional forensic crime laboratory in Nigeria.

3. Weak legal sanctions and enforcement: This point has been mooted by Senator
Helen Esuene when she moved a motion to protect infants and minors from the
cruelty of rape and other abuses. The Senate President, at the time, David Mark,
retorted that “we must ensure that maximum sanctions are meted out to
culprits of rape and sexual abuses”

Even though the offence of rape is in itself punishable with life imprisonment,
other related offences such as indecent assault, sodomy etc carries lesser
punishment.

It is not just expedient to ensure maximum punishment, it is also imperative to

enforce this punishment in a very firm and decisive manner. The police authorities
should courageously investigate and recommend for prosecution the alleged
offenders. The judiciary should not shy away from handing out maximum
punishment, when the occasion demands, to sex offenders. This will serve as a
deterrent to other members of the public.

4. Legal requirement: In Nigeria, for the offence of rape to be properly established,

there must be corroborative evidence which usually comes from eyewitnesses
account or medical evidence. As regards eyewitnesses’ corroboration, the law
requires that such witnesses must have witnessed the actual penetration of the
victim’s vagina. How this is possible, practically speaking, at all times, defeats my
wildest imagination. Most often than not, sex offenders will not undertake the
abominable act in a place easily accessible to members of the public and there is
always the possibility that before any eyewitness finally reaches a rape crime
scene, the offender would have disengaged from the victim which ultimately
means that rape as a criminal offence cannot be established but a lesser offence of
attempted rape.

Secondly, the law requires that there must be penetration of the vagina, no matter
how slight, this is in itself a laudable idea but modern realities has shown us that it
is only the vagina that can be penetrated or defiled. This issue will be addressed in
due course in this essay.

The other way through which corroboration can be established is through medical
evidence which has been discussed above. The lack of human and material
resources to medically investigate and reach conclusive findings in a rape case
leaves a sour taste in the mouth.

Consequences and advice

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As a result of the above, it is pertinent to note that it is only a fraction of rape cases that
are reported. Many victims are too scared to open up as sadly, most perpetrators are
persons very well known to them. There’s also the fear of being stigmatized as being
victims of rape. The point though is that the culture of silence does not help anyone.
Rather it shields the rapist and emboldens him/her to simply look for the next victim.
What then should be done of one is faced with the danger of being raped?

1. It’s ok to scream! The last thing a rapist wants is to be caught. Hence, drop all
sophistications and scream! They will more often stop and run away.

2. It’s ok to defend yourself. Although it may appear difficult, putting in some defence
maybe the critical element needed to buy time before help comes.

3. In the unfortunate event of a rape, do not keep quiet. As with most crimes, there’s the
‘golden hour rule’ i.e. the first hour being the most critical to gather sufficient
evidence, track down a criminal and get adequate medical care. So, contact the
police, the state designated rape assistance unit, the several organizations and
private support centres.

4. While we await more progressive laws to combat this crime, each and everyone has a
role to play in combating this societal menace. We must also learn to give support to
victims and stop the stigmatization.

Have you been raped or do you know someone who has?

If you’ve been raped or sexually assaulted, then you should not suffer in silence. Rape is
a crime in Nigeria, and if you are a victim, you should report the matter to ensure that the
person is punished, and ensure that the person does not get an opportunity to do it to
someone else again in the future.

Reporting rape can be a very emotional and difficult thing to do, so you should consider
getting support from a trusted mentor (you can call me on: 08057311292) and if in Lagos
from organisations like the Mirabel Centre – http://mirabelcentre.org/, where rape and
sexual assault victims can get access to forensic medical assistance, and more importantly
professional counselling services. They are located at Lagos State University Teaching
Hospital (LASUTH) Ikeja, Lagos, and are open from 9am – 5pm – Monday – Friday, and
10am – 4pm on weekends & Public Holidays. They can also be reached on these
numbers: 07013491769, 01-2957816, 08176275732, 08176275695; and on Twitter:
@MirabelCentreNG and Facebook: www.facebook.com/MirabelNigeria

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