A BRIEF DISCUSS ON THE LEGAL DEFINITION OF RAPE: BRIDGING THE LACUNA IN THE DEFINITION OF RAPE (SECTION 357 &358 OF THE CRIMINAL CODE CAP 38 LFN 2004)- VICTOR C. UNEGBU

INTRODUCTION



Rape and other forms of sexual assault have become rampant in the society today. This heinous offence has shattered and destroyed lives of female victims all over the world and in Nigeria in particular.
It is very important that this issue of rape be tackled tactically by reforming the SECTION 357& 358 to meet modern dispensation for justice to be achieved.
In discussing this topic, I will be looking at the Nigerian criminal code definition of rape and how rape is displayed in the USA.
The aim of this paper is to expose the inappropriate and vague legal terms used in the Nigerian definition of rape with the sole desire of clamoring and catalyzing a reformation of the criminal code definition of rape for a better dispensation of justice in this area of law.

MEANING OF RAPE (LAYMAN DEFINITION).
Rape is a form of sexual assault, in which an individual forcefully or without consent have sexual intercourse with another individual.

MEANING OF RAPE UNDER THE NIGERIAN CRIMINAL LAW.
Rape is a situation when a man without the consent of a woman has sexual intercourse i.e there is penetration of the penis into the vagina.
The criminal code defines rape as having carnal knowledge of a woman or a girl without her consent or with her consent if such consent is procured by force, duress or threats.  E.g in the care of a woman who is married, impersonating a husband in order to have intercourse with her would amount to rape.


ELEMENT OF RAPE SECTION 357 AND 358 OF THE CRIMINAL CODE CAP (38LFN2004).
According to this section a person would be guilty of rape if he has sexual intercourse with a woman.
Without her consent
She is threatened with death or bodily harm
Impersonating her husband
Having carnal knowledge of a girl under 14 years with or without her consent.
 See the cases of
Popoola v state (2013) 17 NWLR (pt 1382)p. 100
The case of former governo of zamfara married a 13 year old old girl.
Edwin Ezigbo v state (2012) 16NWLR pt 1326
Ibo v zaria N.A (1962) NNCN 30
Upakar v state (2003) 6 NWLR pt. 316 p. 230
Having carnal knowledge if a girl with unsound mind

NOTE:
In respect with paragraph D &E, the law seeks to protect girls below 14 years and girls with unsound mind because of their vulnerability. The law takes away consent from the equation or element of rape. So therefore whether or not a girl under 14 years or a girl of unsound mind gives consent to a man who had sexual intercourse it will still amount to rape. What the law is saying in paragraph D&E, is that girls of unsound mind and girls under 14 years cannot under the law give consent to sexual intercourse. Any man who has sexual intercourse with these categories of girls would not be able to argue in law that there was consent given by a girl under 14 years or a girl of unsound mind. Such act will amount to rape as long as there is penetration.

Note:
For an act to amount to rape in law there must be at least 3 main elements in issue.
Consent (depending on the age of the victims).
Force or use of threat
Penetration. (no matter how slight)

In the United States of America, the department of justice defines rape in a narrower meaning unlike the wider meaning or definition under the Nigerian criminal code;

“Penetration, no matter how slight of the vagina or anus with any body part or object, or oral penetration by a sex organ of another”
Deducing SECTION 357 and 358 of the criminal code cap 38 LFN 2004, we notice a huge difference in the definition. The Nigerian definition is too wide, in apt and is not encompassing unlike that of the USA. In other words the Nigeria definition for rape is outdated.

COMPARISON BETWEEN THE USA / NIGERIAN DEFINITION
Penetration (no matter how slight): Under the Nigerian definition the word penetration is not used rather carnal knowledge and sexual relation\ intercourse is used. The legal terminology used in the SECTION 357 and 358 of the criminal code is too wide taking into some factors like time or the level of penetration. The question here is, what really amounts to sexual intercourse for the purpose of rape?
Looking at the Nigerian Definition is it when a Rapist has penetrated severally or ejaculated that the offence is complete?
From the interpretation of the above section it would be difficult to infer what rape is because of the loose or wide meaning attached to it.
The preferred legal term should be penetration no matter how slight. This means that in any situation a Rapist inserts a quarter or half or perhaps the insertion of the tip of his penis into the vagina will the enough to have completed the offence of rape.
Anal penetration: Under the Nigeria Law rape only occurs when there is unauthorized vaginal penetration by a male organ. This infers that the act should be between a male and a female i.e a male can only be rapist while a female the victim and not vice verse.
For example the section connotes that a male cannot rape a male nor can a female rape a female.
Penetration with any part of the body or object: The Nigerian Criminal Code does not envisage or infer any form of penetration with any part of the body or object other than with the Penis. It failed in taking into consideration that penetration can be achieved through other means such as oral penetration which is the use of the tongue or penetration by fingering which is common nowadays.

In conclusion
The reformation of the definition of Rape (SECTION 357& 358) under the criminal code cannot be over emphasized.
The definition of rape under the criminal code does not qualify what Rape in modern dispensation mean and thus cannot be suitable in covering all the elements of rape and some factors that may come into play when the offence of rape is adjudicated.

When interpreting the above section these are some of the question that arises in ones legal mind
Is rape gender specific in Nigeria?
Why is it that the Nigerian law stipulates that males cannot be raped?
What if a female rape a female or a male rape a male?
Looking at the definition of rape we can legally deduced that rape can only occur when a man without consent penetrates the female reproductive organ. What if it is anal penetration or if it is by fingering or oral penetration?
In rear instance, what if it is a minor raping another minor or adult?
These are the changes that need to be met for our justice system to operate at optimal level and to allow smooth and fast dispensation of justice when a rape case is to be adjudicated upon. A more pragmatic definition of rape is sacrosanct in this current time where societal norms, value and culture has evolved tremendously from what it was centuries ago.
You know how pot holes can slow ones journey of even cause accident or how turbulence can cause a plane to crash or tempest and storm can cause a ship to wreck so also can this lacuna in definition of rape (SECTION 357 & 358) affect the dispensation of justice in matters concerning rape.