Rape is parochiallysummarily defined as a non-consensual sexual intercourse. The operative word here is “non-consensual (presence and/ or consent).” Present and/ or absence of consent in a sexual intercourse is the focal point in rape cases. Consent therefore, is the magic wand that transforms sexual intercourse from being that conduct which is second only to the offence of murder in heinousness, to a conduct that is criminally innocuous.
In Nigeria as it is in other jurisdictions, having carnal knowledge without the victim’s consent constitutes the offence of rape. Hence, the question is: did the complainant willingly agree to the sexual intercourse at the time it took place?
The Nigerian courts have in several cases provided an insight on the constituents of this element, much as the sections of the Nigerian laws on rape had tried to do the same. See Popoola v The State (2013) 17 NWLR (pt.1382) 96 @123, Idris Rabiu v State (2005) 7 NWLR (pt.925) 491,etc Sections 357 and 282 of the Criminal and Penal Codes respectively. Absence of consent could be denoted thus:
—Absence of willingly given consent, that is, lack of consensus ad idem.
—Evidence of deception by fraudulent means.
—Presence of force, threat, intimidation or fear of any harm.
—Lack of capacity to give consent either due to age, insanity, intoxication, or unconsciousness.
—Revocation or withdrawal of a previously given consent, that is, “post penetration rape.”
The defendant cannot therefore hide under the principle of volenti non fit injuria if the alleged consent was tainted with any of the above vitiating factors.
Consent according to Section 74 of the English Sexual Offences Act, 2003 is defined thus; “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
Post penetration rape therefore means that there was a consensual sexual intercourse which the complaint at some point withdrew. In order words, it is a situation in which both parties initially consent to sexual intercourse, but, at some time during the act, one party communicates to the other that he or she is revoking consent and wishes to terminate the intercourse. After the revocation of consent, the other party forces the revoking party to continue the intercourse against his or her will. The questions then areis:
—Can the defendant stop once the complainant revokes her consent?
—At what speed will the defendant suspend the act of coitus?
—What conduct of the complainant amounts to a valid revocation?
One would also ask…Does it amount to rape where the complainant had previous sexual relations with the accused? Or where the complainant had sexual relations with other men? Or where the complainant is a common prostitute? These were the points that often hamper the effective prosecution of the offence of rape. Proper interpretation of the conducts of the victim has always been a clog in this regard.
Post penetration rape was first introduced by the United States case of State v Way 254 E 2d @761. In this case, the accused was convicted of second-degree rape by the lower court on the ground that the lady withdrew her consent to sex after Way had actually engaged in sexual intercourse with her, but Way, nevertheless, continued the act.
The concept of post penetration rape was developed by the Supreme Court of North Carolina in the case of People v Jonh Z in 2003 (Cal.2003) 60 pp. 183, 184. The fact of this case was that a 17-year-old girl attended a party with her new boyfriend. Everyone in the party drank alcohol, but she did not. Although the girl said that she was not ready for sex, she engaged in a three-way sexual encounter at the party with her boyfriend, John. During the encounter, John left the room and the girl and her boyfriend had sexual intercourse. When it was over, John and the girl began having sex. The girl, having second thoughts, rolled on top of John and told him she had to go home. He rolled on top of her and responded, ‘’just give me a minute.’’ The girl replied, ‘’no. I have to go home.’’ About one minute later, John stopped the intercourse. The California Supreme Court in 2003 held that John’s actions constituted a forcible rape. In doing so, the court pointed out that rape include situations where the victim initially consents to intercourse, but then withdraws her consent after penetration.
According to section 6 of the Criminal Code Act, sexual intercourse that is unlawful is consummated upon penetration. There is no requirement that semen be emitted. The hymen, if present, need not be broken. In R v Hines (1844) 174 ER 861, Upahar v State (2003) 6 NWLR Pt. 816 p. 230 and plethora of decided cases it has been held that the slightest penetration is sufficient. In essence, this rule demonstrates that rape is concerned with the violation of the victim, not with the satisfaction of the defendant.
Again, as was held in Kaitamaki v R (1985) AC 147, sexual intercourse is a continuing act; that is, if the victim consents to penetration but at a later time during the intercourse revokes her consent the man is guilty of rape if he does not withdraw. In R v Cooper (1994) Crim LR 531, the court said that rape was a continuing act, thus, if the accused continues penetration after consent has been withdrawn, he is guilty of rape.
We must continue to remember that penetration does not seem to connote a continuing activity. One penetrates at one moment. It is the penetration without the victim’s consent which is the crux, and that occurs at one time. Intercourse is a continuing act; it is not complete on penetration –rape does not solely depend on penetration.
In R v Brookes (1993) 16 Cr App R (S) 496, it was held that an accused is guilty if not knowing at the start of the sexual intercourse that the woman was not consenting, he finds out during it. The implication of the above principle is that consent must subsist throughout the moment of sexual intercourse.
What form of resistance denotes revocation? The essence of this is that presence of force, threat, fraud or other vitiating elements of consent are not germane in all cases. Sometimes, the victim may say “No” or “Stop”, it would be interpreted to mean revocation. Time and events have overtaken periods where coercion or violence must be established in the offence of rape.
In conclusion therefore, rape could occur where the victim after given consent decides to withdraw it. The defendant is expected to stop once the previously given consent is withdrawn, initial consent is inconsequential and goes to no issue. These culminate in what many jurisdictions call post penetration rape which is yet to be recognized in our Nigerian laws. Although, the Nigerian laws on rape did not create such demarcation between initial consent and absence of consent ab initio. However, in view of the fact that human physiological and anatomical constitution is not designed to function as a machine that once you press “on” it starts and would stop at the press of “off” button, it should be taken into consideration in deciding the offence of rape. Again, some attitudes of the victims today might be interpreted to mean different things. A “no” might mean that you should continue, the same way a “stop” might mean.
Initial consent and absence of consent ab initio can never mean the same thing. Where the victim is a partner to the accused at the said material time, it must be taken into consideration. This is basically to avoid situations where the victim would out of malice, spite or ill- will acrimoniously wakes up to blackmail or accused his/ her “ex” for an act which the person never contemplated. This is to further stress the fact that rape as a criminal conduct must be able to establish the presence of actus reus (guilty act) and mens rea (guilty mind), hence, actus facit reaum nisi mens fit rea.
By
Gabriel Chikwado Eze, Esq.
Gabriel Chikwado Eze, Esq.
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