*WHEN IS SEDUCTION OR INDECENT DRESSING A JUSTIFICATION FOR RAPE IN NIGERIA?* Daily Law Tips (Tip 591) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

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RAPE is an act of sexual intercourse, wherein a male knowingly penetrates a female’s vagina that is not his wife’s with his penis, without the consent of the penetrated female or with her consent that was obtained by fraud, force, threat, intimidation, deceit or impersonation. In proving rape, there is need to establish slightest penetration of vagina (often via rupture of the hymen or emission of semen into the vagina). Rape is a criminal offence punishable with life imprisonment with or without whipping in Southern part of Nigeria but punishable with imprisonment for life or lesser period and fine in the Northern part of Nigeria.

The above archaic but operational definition of rape exonerates an act of rape on a wife or a male victim and does not classify penetration with hand or tools or of any other part of the body other than vagina (like anus, mouth and clogged laps) as rape rather as mere indecent assault (a form of sexual abuse defined to be lesser than rape). In Southern Nigeria, indecent assault on females is a misdemeanour (middle class offence) punishable with 2 years imprisonment but indecent assault on males is a misdemeanour punishable with 3 years imprisonment under the Criminal Code. In the Northern part of Nigeria, indecent assault on a woman (assault on woman with intent to outrage modesty) is punishable with imprisonment for a maximum period of 3 years or with fine or both. And, where there is a sexual abuse of a child not more than 18 years, it is an offence punishable with imprisonment for not more than 14 years. Also, any form of gross indecency against any man or woman in norther Nigeria is a crime punishable with imprisonment for a maximum period of 7 years with or without fine.

The archaic definition has its roots in the Criminal Code (operational in Southern Nigeria), the Penal Code (operational in the Northern Nigeria) and decisions of Nigerian courts (especially decisions of the Supreme Court). However, the Federal Capital Territory, Abuja under a 2015 law (the Violence Against Persons [Prohibition] Act, 2015) and some other states in Nigeria, have departed from the above archaic definition, and now extend rape to any type/form of penetration of any orifices (openings in the body of man or woman) and recognizes the fact that men and wives can be victims of rape.

Rape is punishable under the Violence Against Persons (Prohibition) Act, 2015 with imprisonment for a minimum term of 12 years and maximum period of life imprisonment. Where the victim of rape is a child ( a person that is less than 18 years old), the offence is punishable with imprisonment for life under the Child Rights Act, 2003.

Torture is the intentional infliction of mental or physical pain/suffering on a person in order to obtain information/confession, or punish, intimidate and force him or a third party. Under the Anti Torture Act 2017, rape is a form of torture and torture is punishable with imprisonments for 25 years without an option of fine.

Under the Criminal Code in southern Nigeria, rape is a crime punishable with life imprisonment with or without canning. And, attempted rape is also a crime but punishable with imprisonment for 14 years with or without canning. Then, under the Penal Code in northern Nigeria, rape is a crime punishable with imprisonment for a maximum period of life imprisonment and less period, with or without fine.

Generally across Nigeria, by the provisions of Child’s Right Act, any person that has sexual intercourse with a child of not more than 18 years of age even with the consent of the child has committed the offence of rape. The offence is punishable with life imprisonment. Consent of child or ignorance of the age of a child is immaterial.

In response to the rhetorical question in title of this work, seduction and indecent dressing are not justification for rape. There is no justification for rape and there is no place where seduction or indecent dressing is a justification for rape. Always remember that, no matter how attractive any property may appear, attraction cannot be a justification for stealing. The body and parts of the body of a person must be respected at all times. Rape is not just a torture -criminal offence- but a breach of fundamental human rights (right to dignity of human person and right to personal liberty) of victim and as such monetary compensation is allowed but not as an alternative to imprisonment but as an addition.

Kindly note that the Violence Against Persons (Prohibition) Act, 2015 is operational only in Federal Capital Territory, Abuja. However, similar laws are now operational in Anambra State, Ebonyi State and Oyo State. More States are encouraged to enact similar laws. Unfortunately, many states in Nigeria have refused and failed to adopt and enact the Child Rights Act 2003 and some of the few that enacted their own Child Rights Law, reduced the punishment for rape in them. There is need for states to always prepare adequate legal framework and environment for rights to flourish and offenders to be adequately punished. Man is natural selfish and people will not stop rape because they care but will stop rape for fear of law. And, the laws will not be known after being enacted unless there is measurable awareness. Law awareness is the vision behind the free daily law tips (#DailyLawTips) and the free to access law platform/website (LearnNigerianLaws.com) of Sabi Law Foundation.

My authorities are:

1. Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999.

2. Sections 2, 3, 8 and 13 of the Anti Torture Act, 2017.

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

4. Sections 31, 32, 277 and 278 of the Child’s Rights Act, 2003 and other similar laws in states of the federation

5. Sections 1, 6, 222A, 353, 357, 358, 360 and 363 of Criminal Code Act, 1916.

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

7. 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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