Article written by Marvellous Monday Esq.
In Nigeria, the concept of spousal rape (marital rape) has been a subject of legal jurisprudence for a long time. Morally, most persons do not subscribe to spouses being subjected to sexual intercourse by the other spouse against their will, especially through violence or threats of violence.
However, people hardly institute criminal actions against their spouses for spousal rape because of family ties and also because people have resigned to the fate that spousal rape is not penalized under Nigerian laws. It is not farfetched that pursuant to the provisions of section 36(12) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended), which states that no one shall be convicted for an offence not provided for by written law and its punishment clearly stated at the time of the commission of the offence, no one is facing the wrath of the law for spousal rape.
This article will consider the criminality or otherwise of spousal rape.
WHAT IS RAPE?
Rape has been defined by section 1 of the Violence Against Persons (Prohibition) Act 2015 (hereinafter referred to as the VAPP Act) as:
(a) where a person intentionally penetrates the vagina, anus or mouth of another person with any part of his or her body or anything else;
(b) the other person does not consent to that penetration; or
(c) the consent is obtained by force or means of threat or intimidation of any kind 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 a person or, in the case of a married person, by impersonating his or her spouse.
From the preceding, it can be deduced that for there to be rape, there has to be sexual intercourse or penetration without consent or the consent was obtained forcefully or fraudulently. Interestingly, the definition of rape provided by the VAPP Act has embraced a wider approach. Therefore, rape could now be by oral, anal or vaginal sex. It is worthy of note that the VAPP Act is only applicable in the Federal Capital Territory. However, in November 2022, the Ministry of Women’s Affairs stated that 34 states in Nigeria had domesticated the VAPP Act. This was reported by Premium Times here.
WHAT IS SPOUSAL RAPE?
Succinctly, spousal rape is when a person has sexual intercourse with or penetration of their spouse without the consent of the spouse or such consent was obtained forcefully or fraudulently.
IS SPOUSAL RAPE A CRIME IN NIGERIA?
In Nigeria, many have argued that spousal rape is not a crime. However, some have argued based on the repugnant custom, that wives are chattels (properties) of their husbands to be treated as he wishes. The main premise for this argument in favor of the non-criminality of spousal rape has been the provisions of Section 6 of the Criminal Code Act applicable to the southern part of Nigeria and Section 282(2) of the Penal Code Act applicable in Northern Nigeria. For emphasis, the provisions of these sections are reproduced below. Section 6 of the Criminal Code Act provides:
When the term “carnal knowledge” or the term “carnal connection” is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration. “Unlawful carnal knowledge” means a carnal connection which takes place between parties who are not husband and wife.
Section 282(2) of the Penal Code Act, on the other hand, clearly states, “Sexual intercourse by a man with his wife is not rape if she has attained puberty.” Clearly, from the provisions of the laws reproduced above, spousal rape is an exception to the criminality of rape under the Criminal Code Act and the Penal Code Act. However, the VAPP Act 2015 does not recognize any of these exceptions of spousal rape from what is classified as rape under Nigerian criminal law. Put differently, no section of the VAPP Act has made a provision for exempting a spouse from being charged with the crime of rape, where the crime is committed against their spouse. One would imagine if the saving grace under section 282(2) of the Penal Code Act and Section 6 of the Criminal Code Act could save a defendant from a conviction for raping his spouse, where he was sued under the VAPP Act in the FCT or VAPP Laws of various states. That saving grace would not exist because where a defendant has been charged with a crime under a law which prescribes the offence and its punishment, it would be a wild goose chase for the defendant to raise the defense of an exception provided for in another law under which he has not been charged.
Besides, Section 45(2) of the VAPP Act has given priority to the VAPP Act concerning the matters it covers. It provides that where other laws make provisions for areas that VAPP Act has covered, the VAPP Act shall take precedence. In states with a similar provision, the VAPP Law will also supersede. For instance, there is a similar provision in Section 66(2) of Violence Against Persons (Prohibition) Law of Ondo State 2020. This means that in cases of crimes like rape in which the VAPP Act has made express provisions, the provisions of the other similar laws on the same subjects have become subordinate to it, and the VAPP Act or Law will take priority in the case of a conflict. Therefore, where proved beyond a reasonable doubt, the offence of spousal rape is punishable under the VAPP Act.
Also worthy of note is that spousal battery, which usually precedes spousal rape, is also a criminal act punishable under the law. By Section 19(1) of the VAPP Act, it is a crime for a person to batter their spouse. Therefore, where events leading up to a spousal rape involved violence against the raped spouse, the defendant could be standing trial for both rape and battery at the same time. The punishment for spousal battery in Nigeria is up to three years imprisonment or a fine of #200,000 or both. However, these laws surrounding criminal acts of one spouse against the other are rarely put to effective use. This is because parties often time bully the complainant (mainly the wife) into settling out of court and eventually letting loose of the offenders who, more often than not, repeat these crimes, thereby causing perpetual physical, emotional and psychological hurt to the victims who might eventually lose their lives to sexual violence.
We look forward to the development of the Nigerian jurisprudence (case law) on spousal rape. Also, the VAPP Act or Laws of the various states should be tested.