Marital Rape: An Examination of the Latest Placement of Legislation in Nigeria

In this posting, Adeniyi Israel Adekunle discusses the placement of regulation as regards marital rape in Nigeria, dissecting it in line with our penal legislation. He concludes that the different Nigerian guidelines do not recognise rape amongst spouses, apart from the Penal Code which criminalises marital rape, if the spouse has not attained the age of puberty. He advocates that Nigeria must emulate the rising world wide craze, and consider measures to criminalise marital rape, which from reports of domestic abuse, would seem to be on the rise

Introduction

Humanity commenced to witness the anti-social conduct of rape, from time immemorial. The act of rape, which virtually all societies in the planet regard as felony, is an aggravated form of sexual assault that will involve the nonconsensual sexual intercourse, typically by a male with a lady or a lady. This is the common conception of the offence of rape, as the previous faculty of assumed thinks that the act of rape can only be dedicated by a male. In fashionable situations, state-of-the-art authorized units have recognised the requirement of neutralising the gender of rape, in the reasonable perception that a guy can also be raped by a woman, and a boy or male raped by yet another person.

The thought of marital rape by itself, to begin with came to provide as an exception to the offence of rape, simply because it has been a extensively accepted notion that a spouse cannot be raped by her spouse. This is due to the reality that a lot of traditions and cultures in the globe do not recognise the actuality of marital rape, due to the fact they feel that a girl is a legit house of her partner, and as this kind of, by marriage, a lady has given an unrestricted and automatic consent to each sexual intercourse that her spouse has with her. Contrary to this conservative perception, figures have shown that around 40% of married gals in the world, are victims of marital rape. As this sort of, radical human legal rights activists in the final 3 decades, have been crusading for the criminalisation of marital rape. Unquestionably, the trend of the criminalisation of marital rape in lots of jurisdictions in the world, is quickly getting a momentous ground. The kernel of this paper, is premised on the evaluation of the current place of regulation on marital rape in Nigeria.

Idea of Rape

Unequivocally, each individual sensible human becoming agrees that rape is a horrible criminal offense that inflicts significant physical, traumatic, emotional and psychological hurt on its victims.[1] Rape is a prison offence, that is punishable with existence imprisonment in Nigeria. This legal offence is supplied for in Sections 357 and 282 of the Criminal and Penal Codes, respectively. Part 357 of the Prison Code presents that:

“Any person who has illegal carnal information of a girl or girl, without her consent, or with her consent, if the consent is obtained by power or by signifies of threats or intimidation of any sort, or by fear or harm, or by implies of bogus or fraudulent illustration as to the nature of the act, or in the situation of a married girl, by personating her partner, is responsible of rape”.

Importantly even so, Portion 6 of the Legal Code clarifies that:

When the term “carnal knowledge” or “carnal connection” is used in defining an offence, it is implied that the offence, so considerably as regards that factor of it, is total upon penetration.

“Unlawful carnal knowledge”, suggests carnal connection which normally takes area otherwise than in between partner and wife.
This provision obviously asseverates that, as a general rule, a partner are not able to be guilty of raping his wife. It is having said that, important to observe that, the slightest touch of the woman labia minora by the penis is sufficient component to demonstrate that the offence of rape has been fully commited.[2] The kernel of the offence of rape, is penetration.[3]

Strategy of Marital Rape

Black’s Regulation Dictionary defines ‘Marital Rape’ as “a husband’s sexual intercourse with his wife by pressure or without having her consent”.[4] This definition of Marital Rape, from a essential outlook, seems faulty, due to the fact it retains the antediluvian idea that only women of all ages can be raped. Modern legal guidelines have acceded to the simple fact that adult males can be raped. Therefore, an suitable and additional elaborate definition of Marital Rape has been offered in Area 262 of California Penal Code:

“Rape of a individual who is the wife or husband of the perpetrator, is an act of sexual intercourse completed underneath any of the next conditions:

The place it is achieved in opposition to a person’s will by usually means of force, violence, duress, menace, or anxiety of speedy and illegal bodily personal injury on the particular person or an additional
Where a person is prevented from resisting by any intoxicating or anaesthetic material, or any controlled substance, and this situation was acknowledged, or moderately need to have been acknowledged, by the accused

Where by a man or woman is at the time unconscious of the nature of the act, and this is recognized to the accused…

Where the act is accomplished in opposition to the victim’s will by threatening to retaliate in the future versus the victim or any other particular person, and there is acceptable possibility that the perpetrator will execute the threat…
Where the act is attained against the victim’s will by threatening to use the authority of a general public official to incarcerate, arrest, or deport the target or one more, and the sufferer has a fair perception that the perpetrator is a public official….”[5]
This statutory definition is not only commendably elaborate, but also adequately encompasses exhaustive grounds for eventualities that can represent marital rape, even though also avoiding pegging rape acts on the male gender only. In other words and phrases, marital rape is any sexual act fully commited by a spouse on the other spouse with no the partner’s convey consent, or where by such consent is obtained by drive or menace.

Marital Rape in Nigeria

Prima facie, the idea of marital rape, which is also acknowledged as spousal rape, is one that is alien in Nigeria. The Nigerian prison justice, has clearly ostracised the principle of marital rape. The examination of the situation of law as regard marital rape in Nigeria, will be dissected in line with the penal laws, as examined down below.

Criminal Code

A careful examination of the afore-said provision of Portion 6 of the Felony Code, which interprets the that means of ‘unlawful carnal knowledge’ as provided in Area 357 of the same code, clearly reveals that as a common rule, a rape are not able to be fully commited by a husband from his spouse. This is simply because Portion 6 of Criminal Code has defined an unlawful carnal understanding, as a person that has taken spot among a gentleman and a lady/girl who are not spouse and wife. Below the prison code, marital rape has been obviously built lawful, and as these types of, a gentleman are unable to be explained to have raped his wife under any circumstance.

Penal Code

With no significantly ado, the provisions of Section 282(2) of the Penal Code clearly provides that: “Sexual intercourse by a male with his have spouse is not rape, if she has attained puberty”. Simpliciter, the Penal Code, by advantage of this provision, has explicitly and conditionally created the marital exemption to the offence of rape. By implication, as a common rule, a male can’t be explained to have raped his spouse underneath the Penal Code. Having said that, a qualifying clause has been hooked up to this unstable subsection which states that: only “if she has not attained puberty”. This lucidly indicates that a husband will be responsible of raping his spouse, only if he has a nonconsensual intercourse with this sort of wife who has not attained puberty. Without significantly verbosity, the Penal Code has recognised the idea of marital rape, despite the fact that marital rape enjoys the leisure of the drive of regulation only if the sufferer of these types of marital rape is a wife who has not attained puberty.

Sharia Penal Code

Under the Sharia Penal Code, which is a lot more of a regional laws that has been domesticated by some Islam-dominated States this sort of as Bauchi, Kebbi, Jigawa, Yobe, Borno, Sokoto, Zamfara and Kano, the thought of marital rape has been unquestionably exiled into oblivion. For occasion, by virtue of Area 128(2) of the Sharia Penal Code Regulation, “Sexual intercourse by a gentleman with his wife is not rape”. This provision has plainly snubbed the idea of marital rape, and has also strongly designed a marital exception to the offence of rape below that regulation.

Marital Rape from a Spiritual Point of See

Beneath the Islamic religion, it is frequently construed that a spouse are unable to refuse to have sexual intercourse with her partner.[6] In simple fact, it is supported in a single of the Hadith, that a woman who refuses to have sexual intercourse with her husband upon ask for by her husband is deemed to be cursed by all the angels of Allah during the period of time of these kinds of refusal.[7] Seemingly, Islam does not recognise the principle of marital rape.

In the same way, in Christianity, it is predominantly believed, even as contained in the holy scripture, that the wife does not have authority about her very own system, as her overall body belongs to her spouse.[8] This biblical injunction, insinuates that a spouse is not expected to deny her spouse the satisfaction of her have physique. By required implication, the concept of marital rape is neither recognised nor reproved, in the Christian spiritual injunctions.

Summary

Conclusively, our penal rules have not regarded and criminalised a nonconsensual sexual intercourse by a husband in opposition to his spouse as rape. Also, from the foregoing, it is obviously constructed from the purviews of the over cited penal legislations, that the current position of law in Nigeria is that a male cannot be responsible of committing the crime of rape versus his spouse. Reiteratively, the recent placement of the law in Nigeria, does not recognise the concept of marital rape. It is nonetheless, suggested that in mild of the expanding and disturbing data of domestic violence and sparsely noted scenarios of marital rape in Nigeria, a rethink ought to be given by the Nigerian lawmakers on the criminalisation of marital rape in Nigeria. This recommendation is apposite, in line with the current global development of the criminalisation of marital rape. For instance, other jurisdictions these as the United States, the United Kingdom, Canada, France, South Korea, Zimbabwe, South Africa, Rwanda, Sierra Leone and Malawi, have always criminalised marital rape.[9] Devoid of spiritual blindfolds, the strategy of marital rape is one that enjoys constitutional vindication, pursuant to the provision of Section 34 of the 1999 Constitution of the Federal Republic of Nigeria which gives for the correct to dignity of human individuals. Nigeria is counselled to make a legislative pathway that makes marital rape to be a crime, in light-weight of the necessitating situations in the region.

Adeniyi Israel Adekunle