I am a habitually non-commenting reader on this platform, and this delectable attitude continued until Sunday, 4th September, 2016 when I read the article Rape Revisited: Is There A Defence For The Accused? Kindly read the article (in the very unlikely event you haven’t, seeing as it is supremely controversial) before reading mine.
It took, a whooping 2 hours to read all of the article itself and all the comments under. At the end of this exercise (mentally stressful one at that with the attendant physical drain) rephrasing Di Caprio in Django the article had my curiosity but now it definitely held my attention. As a result, I am compelled to write this rejoinder to clarify some of the issues contained therein.
Disclaimers: I am a legal practitioner and since the head article was very legalistic, my comment would be strictly a legal discuss of the issues identified. I hope everyone is able to follow the manifold legal jargon, but I would be glad to clarify and explain any points not understood, just leave a comment.
Two, yes Don Flowers (the learned author of the original article), I am actually one of the newbies, but that does not detract from the arguments contained herein. Considering the lowly opinion you have of newbies (as seen in your replies to A.Y.O.) I would point out that in our profession, years just count for experience not knowledge.
Three, this is not a reply to all of the article, but the salient legal arguments contained in it. As much as possible, I have attempted to avoid a word for word reply. But in all, the legal issues are well covered.
Having disclaimed accordingly, let’s dig in:
I adopt the legal definition of rape postulated by my learned friend as contained in the Criminal Code. However, a fundamental misconception noticed in the article and some of the comments I have read is what the victim consents to!
The very important principle of consent in sexual relations vis-à-vis rape simply is ‘consent to penetrate’. The offence of rape is grounded the moment the penis ‘penetrates’ the vulva (even slightly) without consent.
Therefore, the relevant consent as regards rape, is not consent to kiss and smooch, rather it is the unequivocal consent to penetrate.
Accordingly, irrespective of the consents to smooch and caress given prior, the relevant question is if victim consented to the PENETRATION OF HER VULVA/VAGINA WITH THE MAN’S PENIS.
Arguments were made in the head article about the victim being naked, in a vulnerable position or essentially placing herself in the circumstance where it could happen. In essence the relations or even relationship between victim and Accused was such that the Accused could have believed that the victim was consenting or more colloquially ‘wanted some’.
In reply I state that under Nigerian law, there is no provision for the state of belief of the accused. It is not a defence that you ‘reasonably believed’ that she was consenting. It is a strict legal test, did she consent to the penetration or not simplicta. Therefore, irrespective of the disposition of the thoughts of the accused as per the victim’s consent, all the law is concerned with is whether there was actual consent or not.
Following from the above, what then is legal consent in the circumstances of rape? In R v Kaitamaki  2 All ER 435, the Privy Council stated “Sexual intercourse is a continuing act which only ends with withdrawal”. By this definition, EVERY SINGLE TIME a guy thrusts, and as a result enters and exits the vaginal canal, the lady consents EVERY SINGLE TIME.
Therefore, even right in the middle of intercourse, legally, the lady can withdraw her consent. If the guy penetrates one more time after the consent has been withdrawn, he penetrates in the absence of consent and accordingly rape is grounded.
This also strikes at the assumption that consent to smooch is consent to sex, not in the least. By the authority stated above, even consent to sex itself, is not one off for the whole act until climax, NO, it can be withdrawn.
This then beautifully brings up the issue of insanity. Can a guy who is already ‘there’ i.e. properly aroused prior to the first penetration or right in the middle of intercourse rely on the defence of insanity to a rape charge, considering as stated in the article the bindingness of the chemical setup of his brain?
The M’Naghten’s Case(1843) 10 C & F 200 sets out the legal definition of insanity followed in all common law jurisdictions (of which Nigeria is one). I would quote at length as to the what criminal insanity means ”the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
So: Is arousal a defect of reason? Does arousal constitute a disease of the mind? Does arousal deprive an individual of the ability to understand the nature and quality of sex? Does arousal prevent a person knowing that penetration without the express consent of the victim is wrong?
With respect, there is a very good reason why the defence of insanity is usually only used in homicide cases.
Next we tackle the very controversial issue of bruising (from a cursory look at the comments section, one can see how controversial this was). With the greatest respect I submit the point was missed here.
Bruising is NOT an element of the offence of rape. It is, simply and potentially, evidence of rape.
In the same vein, so is resisting, screaming, claw marks on the assailant’s face or other body parts, discharge in or around the vagina/vulva, presence of similar variants of STDs/STIs, testimony of persons who saw the event, pregnancy of the victim, torn apparel, testimony of experts i.e. doctors from findings on rape kits, evidence of abduction, etc.
All of these simply are pieces of evidence to be relied on to prove that rape occurred, and accordingly the absence of one or more of the above is not conclusive of the fact that the accused is innocent!
In the very famous case of R v Olugboja  QB 320 the English Court of Appeal held “The jury should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent.”
Accordingly, the fact that the victim submitted and the accused had ‘gentle’ sex with her so that there was no bruising is not equivalent to consent and/or innocence. I cannot say it better than the learned Lords said it above “by no means (does it follow) that a mere submission involves consent”.
So accordingly, the fact that the ladies in the examples given in the article did not cry and claw, does not mean they were not raped. Especially the second lady who having been physical subdued already, was probably paralysed with fear, had surrendered to her ‘fate’ and to avoid any physical hurt, simply submitted.
They might have consented to making out and the extensive foreplay, and maybe even had the intention of having sexual intercourse, but this can by no stretch of the imagination metamorphose into consent. If they said no to the penetration (as they actually did in both scenarios) they did not consent to being penetrated and legally that is rape, even if they submitted.
Finally on this point, the Supreme Court has in a plethora of cases held that evidence of the absence of consent, which grounds the offence of rape, need not be corroborated. Once there is ANY SUBSTANTIAL evidence, bruising or otherwise (choose one of the inexhaustive examples listed above) that the victim did not consent, rape is established.
Leading up from the above, what about the past pattern of behaviour? A girlfriend consenting in the past or a ‘free for all babe’.
Pattern of previous sexual behaviour also is not an element of the offence of rape i.e. historical consent is not evidence of instant consent. Therefore under the law, even a prostitute who has received payment for sex can still be raped by the person who paid, if she refused penetration having received payment, and the ‘John’ has forcible intercourse with her. The fact that she has previously consented to intercourse with other men, and even the John, does not evidence that she consented at the relevant time.
This legal fact has led several county to enact various variants of the Rape Shield Law. These laws are designed to ensure that the victims previous sexual history is inadmissible i.e. cannot be used as evidence against her (with exceptions) during a rape trial.
Sadly there are no such laws in Nigeria. But it is still a legal fact that all the law is concerned with is at the material time, did the victim expressly consent to be penetrated or not. Not whether she had consented in the past.
In the light of my submissions above, it is clear that the article is very lopsided as regards the law. It is a good but rather slanted view of the law from the perspective of a Defence counsel during a rape trial, but is not representative of the neutral position of the law.
I get Don Flowers qualm, there is a need to scrutinize an accusation of rape to ascertain its veracity, if for nothing else, because it is a grave accusation. But legally, that is what a trial is for! With the attendant right of the accused being innocent until proven guilty.
Like I stated above, this has been very legal and I deliberately avoided the social cum moral dimensions of the offence of rape, because the article also skirted this aspects. I just wanted to disabuse the notion that the article represents the truest legal position of rape.
Advice: To the guys (and potentially ladies too), No is No. It is safest to wait for the yes, than seek to give your own interpretation of the word No in the light of your previous experience. If you get a no, it is basic evidence that she refused consent and the burden (a very difficult one at that) is now on you to prove that No actually meant yes!
Just imagine standing before a Judge and saying “My Lord she said no, but you know these girls, when they say no, it actually means yes”. The angels and saint would need to be on your side if it is a female Judge or like me a male Judge who is feminist.
So if you get a no, as hard as it might seem (is it? Really?) just roll off her. If the no actually meant yes, let her be the one to pull you back and say “but I was only joking now”. Great word of advice: Better safe, than life imprisonment with CANING!
PS: Indeed under Nigerian law (sadly) a husband cannot rape his wife. This is a common law principle that we borrowed from the British, the history of which is rooted in the patriarchal and mysoginistic writings of Lord Hale, written at a time when women could not own property in their own right and were considered their husband’s chattel (i.e. property).
However, as far back as 1991 in R v R  3 WLR 766, the House of Lords (at the time the UK’s highest Court) held “The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.”
This is as true now as it was then, the Nigerian situation is as outdated as it is unconscionable and immoral. A man should not be excused forceful penetration on the grounds of matrimony. It makes a mockery of the institution and the rights of a woman as protected by law.
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