The Constitution of Nigeria guarantees the respect and dignity of the citizens (Old, Young, Adult, Child, Male or Female) and it’s unlawful to subject another human to torturous and degrading treatment. This is further emphasized in Section 34(1) of the Constitution of Nigeria which provides that “every Nigerian individual is entitled to respect for the dignity of his person.
POSITION ON THE LAW ON MARITAL RAPE
Let’s start with the key words as defined by Merriam Webster Dictionary
1. Marital: of or relating to marriage or the married state
2. Rape: : unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person's will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or unconsciousness, or deception
DEFINITION OF MARITAL RAPE
Marital rape can be defined as the act of having sexual intercourse with one’s spouse without the consent of the spouse or where the consent was acquired forcefully.
As with the offense of rape, the major ingredient is the absence of consent or consent acquired through force or violence or the threat of such.
Let’s see what our Criminal Code says about rape
The Nigerian Criminal Code in Section 357 states that, "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."
A further section provides:
Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration.
A critical look at these sections shows:
It is only a female (girl or woman) that can be raped. Hence a boy or man cannot be raped;
A married woman cannot be rape if the carnal knowledge was done by her husband.
Similarly, under the Penal Code (laws that governs the Northern part of Nigeria) there is no offence of marital rape, provided the wife has attained the age of puberty.
Let’s look at another legal definition of marital rape:
According to the Black’s Law Dictionary, marital rape is defined as “a husband’s sexual intercourse with his wife by force or without her consent”, this definition is problematic for the simple reason that the definition implies that only the wife in a marriage can be raped, perhaps influenced by the old reasoning that men cannot be raped.
Considering the position of section 357 of the Nigerian Criminal code (that defines rape), the first ingredient for establishing the crime of rape is having an unlawful carnal knowledge. The law constricts the interpretation of “unlawful carnal knowledge” as that which takes place outside the ambits of marital relationship. This means that a husband cannot be guilty of raping his wife
Owing to this lacuna, there’s has been advocacy for a repeal of the law or an amendment to accommodate:
1. Unlawful carnal knowledge of boys and men;
2. Marital rape
In recent times effort has been made to expand the scope of rape such as in the Violence against Persons Prohibition (VAPP) Act 2015. The Violence Against Persons (Prohibition) Act 2015 is not only a comprehensive Act but an Act that remedied some of the lacuna in Criminal and Penal code on all forms of violence. The Act covers a wide range of gender based violence and does not restrict the offense of rape to female alone but also to their male counterparts. The Act also extends rape to include vaginal and anal penetration or on any part of the body.
Others offenses under the Act includes:
1. Inflicting physical injury;
2. Abandonment of spouse, children and dependents;
3. Gang rape;
4. Genital mutilation;
5. Harmful widowhood practices;
6. Spousal battery;
7. Harmful traditional practices;
8. Attack with chemical/acidic substances;
9. Political violence;
11. Emotional, verbal and psychological abuse etc
Despite the comprehensive nature of the Act and it’s objectives to curb all gender based violence, one major drawback is its application to the FCT Abuja and the High Court of the FCT to try those offences. Currently, only few states in Nigeria have domesticated this Act. Hence, it will be inapplicable in the state that is not recognized. HOWEVER, it’s a known fact that Lagos State is a forerunner and ahead of other states in both laws and its implementation, hence Lagos State has the LAGOS STATE DOMESTIC SEXUAL AND VIOLENCE RESPONSE TEAM (DSVRT).
Domestic and Sexual Violence Response Team (DSVRT) is an organization under the Lagos state Government and committed to ensuring total eradication of Sexual and Gender Based Violence in the State. Their mission is to provide sensitive services to victims of domestic and sexual violence while promoting healthy relationships as they strive to enhance coordinated community response to domestic and sexual violence in Lagos State and indeed in Nigeria.
DSVRT is a collection of professional service providers and officials that respond as a group and in a timely fashion to the various needs of domestic and sexual violence survivors by providing legal, medical, emergency assistance, counseling and psychological and psycho-social support. This team was also established to encourage and create unprecedented level of collaboration among professionals working to end sexual and Gender Based Violence.
Conclusively in Nigeria, there is no law that punishes marital rape. The following recommendations are therefore advised:
Our Criminal and Penal Code be either repealed or amended to accommodate provisions that protects a spouse from all forms of violence (sexual violence) in marriage.
The Violence Against Persons Protection (VAPPA) Act 2015 although comprehensive on the protection of gender based violence be domesticated in other states of the Federation (currently, only 14 States have domesticated this Act since its enactment five years ago).
States should set up bodies that will take collaborate with other non-governmental organizations by taking up cases relating to gender based and sexual violence in marriage.
Advocacy by the government and relevant non-governmental organizations should also be promoted in sensitizing people on the penalties connected with marital rape and all forms of sexual violence in marriage