*CAN A WOMAN BE CHARGED WITH RAPE ?* Daily Law Tips (Tip 595) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

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Since rape is about penetration without consent, can a woman be charged with rape? Does a woman have anatomical (physical body structures) abilities to sexually penetrate a person? Does any law in Nigeria provide that a woman can be charged with rape? If there is any such law, does it operate across all states in Nigeria?

Under the Violence Against Persons (Prohibition) Act 2015, penetration can be with any part of the body, object or anything at all. It will cover cases where a woman rapes/defiles any person (child, man, transgender or fellow woman) with aid of any part of her body (finger, foot, tongue or any other) object/device or anything. However, if the woman did not make any penetration at all, then her offence will be indecent assault, which is lesser than rape.

The minimum punishment for rape under the Violence Against Persons (Prohibition) Act 2015, is now 12 years imprisonment without fine and the maximum punishment is life imprisonment. However, where an offender is less than 14 years old his/her maximum punishment is 14 years imprisonments and where there is group/gang rape, the offenders are jointly liable to a minimum of 20 years imprisonment. Also, names of sexual offenders are to be kept in a register and made public. Victims are entitled to compensation as the court deems fit.

The Violence Against Persons (Prohibition) Act is operational only in Abuja, although some states have enacted (made) their own versions. States that have no such new laws, only operate under the Penal Code (for states in Northern part of Nigeria ) or the Criminal Code (for states in the southern part of Nigeria). Both the Penal Code and the Criminal Code limit rape to penetration of the vagina of a woman with a penis of a man without consent.

So in states that use only the Criminal Code or the Penal Code without a Violence Against Persons (Prohibition) Law, a woman that rapes a man or a boy (even if there was penetration of the victim’s anus or mouth) cannot be charged with rape rather she may be charged with mere indecent assault. Also in such states, there cannot be rape between a couple (husband and wife are immune from being charged with rape of each other) and contrary to reality, men and boys are not allowed to claim to have been raped. This and many more, are reasons states are encouraged to enact their own Violence Against Persons (Prohibition) laws.

Man is naturally selfish and people will not stop rape, child marriage or crime generally, because they care but will stop crimes for fear of law. Laws will not be known and obeyed after being enacted no matter how harsh the punishment therein may be, unless there is a measurable constant awareness. So, there is more to be done above and beyond enacting and amending laws. Legal Awareness must be prioritized having in mind the education gap in Nigeria. Legal awareness is the vision behind the free daily law tips (#DailyLawTips) and the free law platform/website (LearnNigerianLaws.com) of Sabi Law Foundation.

My authorities are:

1. Sections 1, 47 and 48 of the Violence Against Persons (Prohibition) Act, 2015 and other similar laws in states of the federation.

2. Sections 1, 6, 221, 218, 219, 222A, 353, 357, 358, 360, 361, 362 and 363 of Criminal Code Act, 1916.

3. Sections 218, 268, 272, 275, 281, 282, 283 and 285 of the Penal Code Act, 1960.

4. The Supreme Court’s judgment in the case (on how to prove rape) of NDEWENU POSU & ANOR v. THE STATE (2011) LPELR-1969(SC).

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