Marital Rape: An Examination of the Current Position of Law in Nigeria

In this article, Adeniyi Israel Adekunle discusses the position of law as regards marital rape in Nigeria, dissecting it in line with our penal laws. He concludes that the various Nigerian laws do not recognise rape between spouses, apart from the Penal Code which criminalises marital rape, if the wife has not attained the age of puberty. He advocates that Nigeria should emulate the growing global trend, and take steps to criminalise marital rape, which from reports of domestic abuse, seems to be on the rise

Introduction

Humanity began to witness the anti-social behaviour of rape, from time immemorial. The act of rape, which virtually all societies in the world regard as criminal, is an aggravated form of sexual assault that involves the nonconsensual sexual intercourse, traditionally by a man with a girl or a woman. This is the general conception of the offence of rape, as the old school of thought believes that the act of rape can only be committed by a man. In modern times, advanced legal systems have recognised the necessity of neutralising the gender of rape, in the fair sense that a man can also be raped by a woman, and a boy or man raped by another man.

The concept of marital rape itself, initially came to serve as an exception to the offence of rape, because it has been a widely accepted notion that a wife cannot be raped by her husband. This is due to the fact that many traditions and cultures in the world do not recognise the actuality of marital rape, because they believe that a woman is a legitimate property of her husband, and as such, by marriage, a woman has given an unrestricted and automatic consent to every sexual intercourse that her husband has with her. Contrary to this conservative belief, statistics have shown that over 40% of married women in the world, are victims of marital rape. As such, radical human rights activists in the last three decades, have been crusading for the criminalisation of marital rape. Undoubtedly, the trend of the criminalisation of marital rape in many jurisdictions in the world, is swiftly gaining a momentous ground. The kernel of this paper, is premised on the examination of the current position of law on marital rape in Nigeria.

Concept of Rape

Unequivocally, every reasonable human being agrees that rape is a horrible crime that inflicts severe physical, traumatic, emotional and psychological harm on its victims.[1] Rape is a criminal offence, that is punishable with life imprisonment in Nigeria. This criminal offence is provided for in Sections 357 and 282 of the Criminal and Penal Codes, respectively. Section 357 of the Criminal Code provides that:

“Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear or harm, or by means of false or fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of rape”.

Importantly however, Section 6 of the Criminal Code clarifies that:

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

“Unlawful carnal knowledge”, means carnal connection which takes place otherwise than between husband and wife.
This provision clearly asseverates that, as a general rule, a husband cannot be guilty of raping his wife. It is however, important to note that, the slightest touch of the female labia minora by the penis is sufficient ingredient to prove that the offence of rape has been committed.[2] The kernel of the offence of rape, is penetration.[3]

Concept of Marital Rape

Black’s Law Dictionary defines ‘Marital Rape’ as “a husband’s sexual intercourse with his wife by force or without her consent”.[4] This definition of Marital Rape, from a critical outlook, seems defective, because it retains the antediluvian notion that only women can be raped. Contemporary laws have acceded to the fact that men can be raped. Thus, an appropriate and more elaborate definition of Marital Rape has been provided in Section 262 of California Penal Code:

“Rape of a person who is the spouse of the perpetrator, is an act of sexual intercourse accomplished under any of the following circumstances:

Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another;
Where a person is prevented from resisting by any intoxicating or anaesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused;

Where a person is at the time unconscious of the nature of the act, and this is known to the accused…;

Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is reasonable possibility that the perpetrator will execute the threat…;
Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official….”[5]
This statutory definition is not only commendably elaborate, but also sufficiently encompasses exhaustive grounds for scenarios that can constitute marital rape, while also avoiding pegging rape acts on the male gender only. In other words, marital rape is any sexual act committed by a spouse on the other partner without the partner’s express consent, or where such consent is obtained by force or threat.

Marital Rape in Nigeria

Prima facie, the concept of marital rape, which is also known as spousal rape, is one that is alien in Nigeria. The Nigerian criminal justice, has clearly ostracised the concept of marital rape. The examination of the position of law as regard marital rape in Nigeria, will be dissected in line with the penal laws, as examined below.

Criminal Code

A careful examination of the afore-stated provision of Section 6 of the Criminal Code, which interprets the meaning of ‘unlawful carnal knowledge’ as provided in Section 357 of the same code, clearly shows that as a general rule, a rape cannot be committed by a husband against his wife. This is because Section 6 of Criminal Code has defined an unlawful carnal knowledge, as one that has taken place between a man and a woman/girl who are not husband and wife. Under the criminal code, marital rape has been clearly made lawful, and as such, a man cannot be said to have raped his wife under any circumstance.

Penal Code

Without much ado, the provisions of Section 282(2) of the Penal Code clearly provides that: “Sexual intercourse by a man with his own wife is not rape, if she has attained puberty”. Simpliciter, the Penal Code, by virtue of this provision, has explicitly and conditionally created the marital exemption to the offence of rape. By implication, as a general rule, a man cannot be said to have raped his wife under the Penal Code. However, a qualifying clause has been attached to this volatile subsection which states that: only “if she has not attained puberty”. This lucidly implies that a husband will be guilty of raping his wife, only if he has a nonconsensual intercourse with such wife who has not attained puberty. Without much verbosity, the Penal Code has recognised the concept of marital rape, although marital rape enjoys the entertainment of the force of law only if the victim of such marital rape is a wife who has not attained puberty.

Sharia Penal Code

Under the Sharia Penal Code, which is more of a regional legislation that has been domesticated by some Islam-dominated States such as Bauchi, Kebbi, Jigawa, Yobe, Borno, Sokoto, Zamfara and Kano, the concept of marital rape has been undoubtedly exiled into oblivion. For instance, by virtue of Section 128(2) of the Sharia Penal Code Law, “Sexual intercourse by a man with his wife is not rape”. This provision has clearly snubbed the concept of marital rape, and has also strongly created a marital exception to the offence of rape under that law.

Marital Rape from a Religious Point of View

Under the Islamic religion, it is generally construed that a wife cannot refuse to have sexual intercourse with her husband.[6] In fact, it is supported in one of the Hadith, that a woman who refuses to have sexual intercourse with her husband upon request by her husband is deemed to be cursed by all the angels of Allah during the period of such refusal.[7] Apparently, Islam does not recognise the concept of marital rape.

Similarly, in Christianity, it is predominantly believed, even as contained in the holy scripture, that the wife does not have authority over her own body, as her body belongs to her husband.[8] This biblical injunction, insinuates that a wife is not expected to deny her husband the pleasure of her own body. By necessary implication, the concept of marital rape is neither recognised nor reproved, in the Christian religious injunctions.

Conclusion

Conclusively, our penal laws have not regarded and criminalised a nonconsensual sexual intercourse by a husband against his wife as rape. Also, from the foregoing, it is clearly constructed from the purviews of the above cited penal legislations, that the current position of law in Nigeria is that a man cannot be guilty of committing the crime of rape against his wife. Reiteratively, the current position of the law in Nigeria, does not recognise the concept of marital rape. It is however, suggested that in light of the growing and disturbing statistics of domestic violence and sparsely reported cases of marital rape in Nigeria, a rethink should be given by the Nigerian lawmakers on the criminalisation of marital rape in Nigeria. This recommendation is apposite, in line with the current international trend of the criminalisation of marital rape. For instance, other jurisdictions such as the United States, the United Kingdom, Canada, France, South Korea, Zimbabwe, South Africa, Rwanda, Sierra Leone and Malawi, have necessarily criminalised marital rape.[9] Without religious blindfolds, the concept 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 provides for the right to dignity of human persons. Nigeria is counselled to make a legislative pathway that makes marital rape to be a crime, in light of the necessitating circumstances in the country.

Adeniyi Israel Adekunle