CRIMINAL LAW 1.11 THE OFFENCE OF RAPE
Found in Chapter 30 of the Criminal Code
Section 357 of the Criminal Code states that
Anyone that has unlawful and unconsented (or consent not genuine) carnal knowledge with a female is guilty of rape. Also provides for instances of impersonating a person’s husband.
From the interpretation of our criminal code, only a girl can be raped. From the interpretation of a similar provision in the Lagos state law, a man can also be raped now.
The term; carnal knowledge is the old way of saying sexual intercourse.
Section 6 then goes further to clarify that rape is complete upon penetration.
The essential gist of rape is:
- Absence of consent.
ABSENCE OF CONSENT:
Genuine consent must have been given. Before penetration.
In Kaitamaki V R: The accused person claimed that as at the time of penetration, he believed that the victim was consenting. It was after penetration that he realized. But he did not deny that he did not stop. The court held that the offence of rape cannot be divided.
See also R V Mayberry.
In Nigeria, a female below 18 years cannot validly give consent to sexual intercourse.
Submission is not the same thing as consent. In Argentina, the age of consent is 12.
R V Olugboja: Dunn LJ in this case stating that all consent implies submission while submission does not imply consent. He also stated that consent after penetration does not imply consent. The relevant factor being the victim’s state of mind before the act of penetration.
Adeyemi posits that enjoyment after penetration is no consent at all. The focus should be the state of the victim’s mind before the penetration.
In R V Roberts: The court held that a pregnant woman who submitted to rape in order to protect herself and her baby did not consent. A woman does not need to sacrifice her life in other to prove that she did not consent.
There is now sexual harassment provided for in the Lagos state law.
Where a charge for rape cannot be grounded, the court may substitute it to a charge of indecent assault on a female. As provided for in Section 360 of the Criminal Code this was done by the court in R V Seidu.
R V Offiong, accused entered the lady’s room uninvited and took off his clothes. He even caught hold of the lady. The court held that his act constituted a mere invitation.
In R V Seidu, (discussed somewhere else in this material) failure to prove penetration was fatal to the prosecution’s case.