First off, rape is a reprehensible criminal act for which there can never be a justification whatsoever, but what really is rape? Too often we refuse to ask as it is sometimes misconstrued as blaming the victim. I’m hoping that by looking at rape from a legal cum social/moral point of view will help us better understand the subject matter. The principal legislation dealing with rape in Nigeria is the Penal Code Law in the Northern part of Nigeria, the Criminal Code Law in the Southern part of Nigeria and the Criminal Act in the Federal Capital Territory. For the sake of our discussion here today, we will focus our discussion on the Criminal code.
The Criminal Code explains the concept of rape in section 357 and states thus: any person who has unlawful carnal knowledge of any woman or girl, without her consent or with her consent if the consent was obtained by force or by means of threats or intimidation of any kind or by fear of 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 impersonating her husband, is guilty of is guilty of an offence which is called rape. (emphasis mine)
The definition as of rape as given above has several elements which, in law, is referred to as elements of the offense and when a particular scenario lacks these elements, the offense of rape cannot be said to have been committed. They are:
Unlawful: the law insists that for a person to be accused of rape, the sex/carnal knowledge must have been unlawful. So that, where it can be established that the sex was lawful, it would not matter in the eyes of the law whether or not the other elements of the offense of rape is contained in the tale of the alleged victim of the rape.
Although it has not been formally argued in any court in Nigeria, it would appear that marriage creates an exception to the general rule of rape. Marriage creates an institution, a legally binding relationship between spouses, into which the law would not ordinarily go behind to enquire how the respective individuals within the institution choose to live their lives except in dire circumstances.
Sex is an integral part of this institution and any sexual activity that occurs between spouses is deemed legal and as such, a man cannot, under Nigerian law, be guilty of raping a woman to whom he is legally married. If however he procures the services of someone else to rape his wife, he will in that case be guilty of rape.
Carnal Knowledge: The is second element of the offence of rape. Carnal knowledge simplicita is sex with penetration. And legally speaking, carnal knowledge is complete immediately the glans penis touches the vulva, it need not even penetrate the outer opening of the vagina. ( I guess the same should apply for anal rape as the law did not originally anticipate anal sex as a thing due to the fact that anal sex is in itself an offence called sodomy.)
Woman or Girl: The fact that the law expressly uses the term woman or girl in defining the offence of rape automatically excludes the male gender from the category of persons capable of being raped. This is more so when the definition of penetration given above is taken into consideration. As such a male claiming to have been raped will seek remedy through other provisions of the law.
Consent: This is the final and most controversial element in the definition of rape. This is because it is not always clear cut except in situations where violence, threats or intimidation is used. One must ask: Can consent once granted be revoked? If yes, at what point can it be revoked? Is there a point of no return? The wording of the law reads thus:
“…without her consent or with her consent if the consent was obtained by force or by means of threats or intimidation of any kind or by fear of 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 impersonating her husband…”
In considering this issue of consent, we will look at two scenarios which I found online. The first is a comment made on Sugabelly’s blog post asking her audience to list out all the reasons they have ever had sex for. A young woman listed her no. 5 thus:
“Coerced/Forced/Rape? This one has always been confusing for me, because it was a ‘guy I was in a relationship with and when we were making out and going too far, I said ‘No’ but he used his body weight and had his way… For some reason, I did not feel betrayed. I was disappointed it happened then, instead of later when I was absolutely ready but then I felt if I wasn’t making out with him naked, it wouldn’t have happened….”
Looking at the story on face value and juxtaposing it with the law, one will very easily conclude (as a lot of people actually did,) that the young woman was raped but her being a liberal thinker led to her excusing her said boyfriend. But if we delay passing judgment just for a few seconds and consider the defence of the youngman, perhaps we might see things in a different light. More often than not, any attempt to consider the defence of the individual accused of rape draws the ire of the public but aren’t they entitled to any defense whatsoever? Is it wrong to scrutinise a tale/allegation to determine if all the elements of rape are contained in it?
I very firmly believe that society, like the law should, whilst not blaming victims of rape for being raped, endeavour to scrutinise every rape story to decipher whether a girl who claimed to have been raped was indeed raped in the strict, if not legal, sense of the word.
Let us consider this tale above. They were involved in a sexual relationship, they were making out on the day in question, they both removed all their clothes (very likely helping each other out), he was lying on top of her very likely perfecting his final foreplay move and just as he was about to insert his penis, she said ‘No’.
Can and should the law allow her to withdraw consent at this point? If yes, wouldn’t the chemical composition of the youngman’s brain at that very instant entitle him to a defence of insanity against a charge of rape as he cannot be said to be in entire control of his faculties at the time?
Another question we must ask is: was the ‘No’ an emphatic and unmistakable one, so that it could not have been construed as a cry of ecstasy or a minor tease which ladies are sometimes wont to do? All men who have had sex on more than two occasions have had to turn a ‘No’ into a ‘Yes’ at some point in their lives and as such, the issue of whether the withdrawal of consent was clear, emphatic and unmistakable must be discussed. Does asking these question make me a potential rapist? I think not.
Did she struggle or push, did she scratch and bite, did she scream, was the circumstance one in which it can be presumed that she was unable to do any of the above because of a mortal feared inflicted by her assailant? The test, my dear friends must be objective and not subjective. On the face of the tale told, I find myself unable to accept that she was raped and I so submit.
The second story was posted on this blog sometime in 2013, it is captioned “My Own Rape Story”. Please go read it now and then come join me as we evaluate it together and determine for ourselves whether or not the young lady was raped. You are done reading it, yes? Good. Let’s proceed to dissect it and decipher the guy’s own tale from hers and maybe see if there is any defence anywhere for him by cross examining her story.
She didn’t know the organisers of the party before that day, her friend and her boyfriend who took her to the party informed her that it was not a wise decision to stay back, the younger brother of the dude offered her his room stating categorically that his brother had questionable ways with women and she refused the offer and went to sit beside the guy who did his best to ignore her and continued playing his game.
She did all she could to get his attention and when all else failed, she told him she was sleepy (which is a universal female language for “i am horny, can we have sex so i can sleep?) And he in fact left his game and offered her his room. This is the same girl that refused the younger brother’s offer and also left the other two girls in the house.
After bathing and lying down, he made advances to her which she did not rebuff, they made out voluntarily. He brought out a camera and started snapping but she did not reprimand him but merely made an excuse that she was cold and covered herself with duvet, he took off his clothes and joined her and she voluntarily continued making out. He was aggressive and she asked him to stop. COUNTERMAND!!!
After this countermand, he put his hand under her dress and fondled her breast and it was not the fact that he fondled her breast that bothered her but his roughness. At this point, shegave consent afresh. It was after he left the boobs and went to finger her that she again asked him to stop. When the dude was fingering her, she asked him to stop, that she didn’t like what he was doing i.e fingering, but she didn’t ask him to stop the foreplay. Haven’t we all been in a position where a lady says “No, I don’t like that”? does it necessarily mean we should dress up and leave? I think not.
When he proceeded to remove her boxers, she started crying, begging him to stop. He did not threaten or hit her, she started struggling and after pinning her down to show her she was not strong enough to fight (which i am sure a lot of guys here have done at various times, even in none sex plays with the opposite sex) for all the guy knew, the fight was part of the sex. But he finally left the bed, he got up, took off his boxers and applied jelly to his penis, saying ‘sexy stuff’. She did not move an inch, she did not countermand. She sat still. He came back to the bed and penetrated her and she did not fight him off. There were three other people in that house but she did not scream for help at any point.
Can it be said that she was raped? My view may be the unpopular one but I find it impossible to agree that she was raped. What I see instead is a young woman who made a bad decision and regrets it. I do not blame her for putting herself in a bad situation, I understand her plight and commiserate with her because her pain is real. The fact that I do not agree with her claim of rape does not mean the experience was not real to her or that she does not suffer the after effects of rape but i cannot, in order to pacify her, tell her a lie and condemn the youngman. He may have had a chequered history with women and consent in the past but that is no proof that he repeated it with her.
You see, her mother died early in her childhood and her relationship with her father was somewhat strained making her crave emotional validation and sometimes attachment from dangerous individuals. Is it then possible that she is drawn to abusive relationships? That she actually seeks out abusive men or men with questionable past and consciously put herself in their paths, doing everything she possible can to force them to exercise their demons? Is it possible that the vile youngman was himself the victim in this particular story?
She was highly intoxicated on the day in question and the effects of intoxication include a feeling of euphoria and a lowered social inhibition amongst a myriad of evils. She has had a past with drugs and those do have long term side effects as well. We cannot suddenly forget about this when determining what did or did not happen on the night in question.
I have tried my best to evaluate both stories above on the social scale as doing so on a strictly legal ground will explode the number of pages of this piece and I am open to criticism as I do not delude myself into thinking my views are universal or absolute or that I have considered all the angles of the stories.
Now, a legal view. Assuming for any reason either of these cases were charged to court, would the men be convicted of rape? I think not. You see, during foreplay the vagina secretes fluids that make penetration easy, preventing the woman from bruising. Notwithstanding this, some women still bruise during sex but the degree of the bruises is what distinguishes consensual sex from rape. A medical exam is essential immediately after a rape and the testimony of such medical examiner is crucial in a trial for rape.
As can be construed from their tales, both women above were already gushing before they were penetrated. What will an examination of their vagina show immediately after the sex/rape? Assuming both men claim in their defense that the sex was consensual, the vagina of the girl in the first scenario will confirm the story of the youngman, the vagina of the girl in the second scenario will show that they had rough but consensual sex, the testimony of everyone who advised her against her supposed assailant will confirm her desire for that rough sex.
Rape is an abhorrent and reprehensible criminal act for which there can never be a justification but we must ask questions and decide for ourselves rather than allow our passion and hate for the crime blind us. Please tell me, do you think these women were raped because I don’t?
NB: Unlike what many have been led to believe, there have been a lot more rape convictions in Nigeria than the sixteen recently being touted.
Image via WondersList