Rape is defined in most jurisdictions as sexual intercourse or other forms of sexual penetration, committed by a perpetrator against a victim without their consent, (emphasis mine).
The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent.
The definition of rape is inconsistent between governmental health organizations, law enforcements, health providers and legal profession. It varies historically and culturally.
To save the stress of venturing into other jurisdictions on issue of Rape, let us view it from the Nigerian point of view.
There are 4 specific laws that deal with Rape in Nigeria
The Criminal Code - Applicable in Southern States
The Penal Code - Application in all the Northern State
The Criminal law of Lagos- Applicable only in Lagos State.
The violence against person’s prohibition Act- This is applicable in only the FCT Abuja.
Criminal Code (CC)
Under the Criminal Code, rape is when any person has sexual intercourse with a woman or girl, without her consent, or incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained by force/threat/intimidation or by means of false or fraudulent representation as to the nature of the act. It can also be by a person impersonating a married woman’s husband in order to have sex.
Under the Criminal Code (CC), sexual intercourse with an under aged girl or people with unsound mind is the offense of defilement. Technically, this means that a person could be charged for rape and defilement.
The Penal Code (PC):
Under the P.C, Rape is when a man has sexual intercourse with a woman against her will, without her consent, or with incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained:
By putting her in fear of death or hurt.
By a person impersonating a married woman’s husband in order to have sex.
Further under the P.C, sex with a girl under 14 years of age or who is of unsound mind is rape, irrespective of whether there is consent. Also, the Penal Code explicitly States that sexual intercourse by a man with his wife is not rape.
Criminal Laws of Lagos (CLL) :
Under the C.L.L, rape is when a man has sexual intercourse with a woman or girl without her consent or with incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained:
By force, impersonation, threat or intimidation of any kind.
By means of false and fraudulent representation as to the nature of the act.
As with the Penal Code, the Criminal Law of Lagos State explicitly State that sexual intercourse by a man with his wife cannot be unlawful, and therefore, a man cannot rape his wife.
Note here therefore, that in all the 3 laws explained above, rape can only occur when the vagina of the woman is penetrated.
However, this does not mean that anal unlawful sexual intercourse is allowed. This is a crime and is covered under different descriptions in different legislations. The penalty for rape across all the laws is life imprisonment (however this is not a sentence in all of them).
Violence Against Persons Prohibition Act (VAPPA):
The VAPPA defines rape as when a person intentionally penetrates the Vagina, Anus, or mouth or another person with any other parts of his/her body or anything else without consent, or with incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained:
By force/threats/intimidation
By means of false and fraudulent representation as to the nature of the act,
By the use of substances capable of taking away the will of that person.
By a person impersonating a married woman’s husband in order to have sex.
As you can see, the VAPPA seems like a very progressive piece of legislation. Unfortunately, the law is only applicable in the FCT, Abuja. It does not apply in any of the other states of the Federation.
Having given the litany of definitions above, it is evident that one of the things that determine rape is lack of consent and by a party who can give the consent. One would be inclined to ask what truly constitutes consent.
Consent:
This term in this context means actively agreeing to be sexual with someone. Consent lets someone known that sex is wanted (this has to do with agreement by conduct) sexual activity without consent is rape or sexual assault.
Consent equally means voluntary acquiescence to the proposal of another, the act or result of reaching an accord; a concurrence of minds; actual willingness that an act or act or an infringement of an interest shall occur.
Consenting and asking for consent are all about setting your personal boundaries and respecting those of your partner and checking in if things are not clear. Both people must agree to sex, every single time for it to be consensual. Without consent, sexual activity (including oral sex, genital touching and vaginal or anal penetration) is sexual assault or rape.
These are thing to note about consent.
Consent is:
Freely Given:
Consenting is a choice you make without pressure, manipulation, or under the influence of drugs or alcohol.
Reversible:
Anyone can change their mind about what they like doing, anytime. Even if you have done it before, and even if you are both naked in bed. There may be different opinions on this particular point but I align myself with this.
Informed:
You can only consent to something if you have the full story. For example, if someone says they will use a condom and they don’t there is no full consent.
Enthusiastic:
When it comes to sex, you should only do stuff you want to do, not things that you feel you are expected to do.
Specific:
Saying yes to one thing (like going to the bedroom to make out) does not mean you have said yes to others (like having sex). Other likely examples may suffice.
It will be right to say at this time that consent is never implied by things like your past behaviour, what you wear or where you go. Sexual consent is always clearly communicated. There should be no question or mystery. Silence is not consent.
There are laws about who can consent and who cannot.
The Criminal Code for instance makes it clear that:
People who are drunk, high, or passed out or threatened cannot consent to sex. The law also protects a minor from giving sexual consent.
Section 357 of the criminal Code Act
Described this offence thus:
“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 husbands, is guilty of an offence which is called Rape”.
In the cases where the underlined circumstances are occurring, one cannot be said to have gotten consent.
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