By Victor Anayochukwu Jonah
INTRODUCTION
Cases of rape in Nigeria have recently assumed alarming proportion. Sadly, the chastity and dignity of women and children have been further endangered by some marauding beast disguised as men. The female gender is now coerced into fear of her safety. The increasing cases of rape and sexual based violence suddenly attained its crescendo and have become a daily sad tale inscribed on our national banner. The upsurge in the number of complaints is obviously not met with corresponding convictions in courts. The burden legally bestowed on the prosecution to establish a case of rape is herculean and almost skewed to guarantee failure. Oftentimes, persons charged with the offence of rape capitalize on the inescapable legal loopholes to extricate themselves from conviction whereas the victim is left to relapse into anguish and trauma. Currently, establishing a crime of rape in most states across Nigeria is equivalent to the proverbial camel entering the eye of a needle. This article seeks to bring to the fore these difficulties while charting a new course within the firmament of our laws.
BACKGROUND
The social and conventional media have been awashed with plethora of complaints bothering on rape across the length and breadth of Nigeria in recent times. Most recently was the gory rape and murder of 22 year-old Miss Vera Uwaila Omozuwa who was a student of University of Benin. Not a few Nigerians were enraged by the treacherous act which generated protests across the country. Subsequently, on 12th June, 2020 which has now metamorphosed into our democracy day, President Muhammadu Buhari alluded to this degeneration when he decried the spike in cases of rape thus: “I am particularly upset at recent incidents of rape, especially of very young girls”. On 15th June, 2020 the Inspector General of Nigeria Police (IGP), Mohammed Adamu stated that a total number of 717 cases were reported between January and May, 2020 alone. This data apparently excludes a presumably greater number of cases that were swept under the carpet in the period under review. Some women who were supposedly victims in the past have seized the momentum to speak out and reveal the identity of their violators – sometimes pointing accusing fingers on high profile personalities.
Although, sexual offences are not confined to the female gender, it is unarguable that women and children suffer this indignity the most whilst in the hands of some callous and satanic beings unfit to dwell on planet earth. Even most of our laws have not fully embraced the fact that men are capable of being raped. Hitherto, rape was erroneously blamed on woman for reasons including: indecent dressing, living in solitude, late night outings, purported disrespect to a male counterpart etc. These reasons no longer command any logical or sound reasoning in the face of repeated cases of rape on new born babies, toddlers and very old women. The fact remains that whatever reason or lame excuse perpetrators of these dastardly acts may give for their heinous crime, there is no justification to demean and subject any woman to an object of exploitation in manners that inflict inerasable agony on her psyche.
Generally, Nigeria’s dual penal legislations criminalize rape and prescribe maximum punishment for convicted offenders. Unfortunately, our traditional beliefs, socio-cultural norms and defective criminal justice system have lent willing hands for the escape of these offenders. Often time, families of rape victims prefer to handle these allegations of rape as family matter and shroud them in secrecy. This is often influence by the nauseating stigma and primitive perception the public have over survivors of rape. On the flip side of the coin, the Nigeria criminal justice system is mostly ill-equipped to efficiently make the offenders truly face the full wrath of the law. It is mostly taken for granted that a thorough investigation which arms the security agents with compelling evidence is a precursor to an eventual conviction in a court of law.
Moreover, the often nocturnal and clandestine nature of this crime poses a huge challenge in assembling requisite evidence with which to prosecute the offender. It is not unusual for victims to delay considerably before they summon courage to report the crime – often necessitated, understandably, by the trauma faced by the female victims. Late reporting of rape cases usually make assembling of fundamental evidences extremely difficult, sometimes even untraceable. When the matter eventually gets to court, the capacity of the prosecution becomes key. Most important in the circumstance is the capacity to establish all the legal elements of rape which currently harbours mountainous thresholds and is often difficult to sail through in law. In fact, once the evidences have been damaged or irreparably compromised, establishing rape would be equivalent to a camel passing through the eye of a needle. Indeed, it is common for rape victims and their families to tamper with what would have been glaring evidence of rape before involving security agents. Even when cases are reported, the inefficient, soiled and sordid outlook of the security agents stifles the process and makes prosecutorial success almost unattainable.
It is important to note that law and indeed rape in the legal sense do not kowtow to the suffocating and outlandish outpouring of sentiment. Rape is a legal concept with legal implications. There are other sexual based violence that are codified as offences and attract lesser punishments. The offence of rape on the other hand, is felonious and upon conviction the offender may spend the rest of his lifetime behind bars. A holistic assessment of the encumbrances in establishing a criminal case of rape in Nigeria have often led victims to chicken out and consequently emboldened the offenders to masquerade in liberty and continue to prey on hapless women and children. These challenges are not insurmountable. However, while the commendable spike in agitations may have kick-started revolutionary discourse that would hopefully crystallize into strengthening our laws and rejigging our criminal justice system, women who suffer rape ought to maximize the existing laws to obtain sufficient remedies. This article attempts to succinctly dissect the extent of burden bestowed on the prosecution to proof rape. It calls the attention of Nigerians to appreciate the legal burden and urge victims to be circumspect, in addition to exploring other available remedies. It also appeals to law makers to strengthen our laws pronto. This paper envisions that if our laws and relevant investigative agencies are strengthened and adequately utilized, it would reduce the present difficulties and guarantee easier convictions which would eventually serve as deterrence to perpetrators of these callous acts.
MAJOR ENACTMENTS AGAINST RAPE IN NIGERIA
The major criminal legislation in Nigeria is regionalize between what was known as the former Northern and Southern region of Nigeria. Each region has legislation on criminal procedure that is peculiar to its local circumstances. This however is long overdue for amendments. The Penal Code is applicable to Northern Nigeria while the Criminal Code operates in states within the Southern axis. The provisions of the Criminal Law of Lagos State derive its root from the Criminal Code. The Violence Against Persons Act (VAPPA), 2015 is a courageous legislation that shows a radical departure from the Penal and Criminal Codes; except for it restricted application to the Federal Capital Territory, Abuja and few States that have domesticated it. All these legislations derived their existence from the Supreme law of our land. The 1999 Constitutional (as amended) abhors the indignity of a human person. Particularly, Section 34(1)(a) of the 1999 Constitution (as amended) provides that:
Every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subjected to torture or to inhuman or degrading treatment.
By virtue of Sections 21 & 277 of the Child’s Right Act, 2003 a child is a person below the age of 18 years. On the strength of Section 31 of the Act a person who engages in sexual intercourse with a child shall be guilty of rape. This section invokes strict liability on offenders. It is immaterial if it is the child that initiated the sexual advance and the offender presumed that the child looked matured enough to be above 18. Once it is established that there is sexual intercourse, the offender is strictly liable. Section 32 thereof frowns at other acts of sexual exploitations of a child – which is punishable upon conviction with fourteen years imprisonment. It is instructive to note that this Act makes no distinction between male and female children. No doubt, this Act is laudable. The snag with this Law is that it has not been adopted by some states in Nigeria. Thankfully, it has been adopted in Lagos State and most States in Southern Nigeria.
The definition of Rape as contained in the Penal and Criminal Codes are substantially the same. The discrepancies between them are minute. The verbatim provisions of these legislations will now be reproduced hereunder for clarity.
Section 282 (1) of the Penal Code of Northern Nigeria merely describes acts that tantamount to rape within the region. It provides thus:
A man is said to commit rape who has sexual intercourse with a woman in any of the following circumstances: (a) against her will (b) without her consent (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt (d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married (e) with or without her consent when she is under fourteen years of age or of unsound mind.
On the other hand, Section 357 & 358 of the Criminal Code Act (which is in pari materia with the provisions of the Criminal Law of Lagos State) also provides a guide on acts and conducts that amounts to rape.
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 threat or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband is guilty of an offence which is called rape.
Any person who commits the offence of rape is liable to imprisonment for life, with or without caning.
The foregoing legislations are anachronistic when compared with the provisions of VAPPA. This new Act which was assented to in 2015 is an ambitious legislation that was enacted to cure the mischief, loopholes and inadequacies that have crippled the ancient Penal and Criminal Codes in the aspect of rape and sexual based violence. Section 1(1) of the new Act vividly itemizes acts that give rise to rape thus:
A person commits the offence of rape if: (a) he or she intentionally penetrates the vagina, anus or mouth of another person with any part of his or her body or anything else;(b) the other person does not consent to the penetration; or (c) the consent is obtained by force or means of threat or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act or the use of any substance or addictive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.
The VAPPA also contains laudable provisions that criminalize various forms of sexual based violence in manners that largely take into consideration realities of modern times. A cursory look at the definition section in VAPPA glaring shows that a man is now capable of being raped. Again, rape is not limited to vaginal penetration as is the case in the Penal and Criminal Codes. Unlike the Penal and Criminal Codes, under the VAPPA, the object of penetration has been expanded. Therefore, the use of any part of a human body or object to penetrate the vagina, anus or mouth of another person without a valid consent is rape. Notice that Section 1(1) (a) stands alone and could be married to either subsection (1) (b) or (1)(c). Unfortunately, the VAPPA is not applicable throughout the federation. It is only rape victims within the jurisdiction of FCT, Abuja and the few states that has domesticated the Act that currently benefit from this legislation. It is also worthy of note that the VAPPA has not entirely erased the heavy burden placed on the prosecution to establish the offence of rape but it made huge progress.
QUANTUM OF LEGAL BURDEN PLACED ON THE PROSECUTION IN THE COURTROOM
Rape is a heinous crime and ought to be condemned by all. Before we venture into the legal burden placed on the prosecution, permit me to re-echo my approval of the statement of the Supreme Court, per I.T. Muhammed (JSC), wherein he expressed the court’s disgust against rapists in the case of Isa v. State (2016) 6 NWLR (Pt. 1508) 243 thus:
A rapist is worse than an animal. He has no moral rectitude. He throws overboard the limit of his legal right and he can, shamelessly, deprive another person (more painfully, female children of underage) of their God given rights of protecting the chastity and sanctity of their body and mind. He is all out to pollute such chastity and sanctity. He has no respect for human beings! He can commit any atrocity. He is a cancer in the society. What a shame!
However, it is pertinent to state that in criminal proceedings a person accused of the offence of rape is presumed innocent until the contrary is proved as encapsulated in Section 36 (5) of the 1999 Constitution. This is very important in the light of the torrential sentiment that is triggered whenever accusations of rape are made on social and conventional media. We must admonish that a person who is maliciously accused of rape (via publications in any media) and subsequently acquitted can sue for defamation and obtain damages. A person accused of rape does not become guilty in law until he is convicted by a competent court of law base on facts and admissible evidence.
The law as we have it today is that a person who wants to establish a case of rape must do that beyond reasonable doubt. This is because rape is a criminal offence that may eventually lead, among others, to the perpetual deprivation of the liberty of an accused person upon conviction. The criminal jurisprudence is predicated on the axiom that it is better to free 99 criminals than to deprive one innocent man his liberty. The Latin maxim, Ei incumbit probation qui dicit, non qui negat connotes that the burden of proof is on he who asserts, not on he who denies. This notion rings a bell at the mind of a Judge whenever an accused person appears in Court. The above position enjoys statutory backing under Section 135(1) of the Evidence Act, 2011 wherein it provides thus:
If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
This foundation is significant so as to understand the way the mind of a Judge works when faced with a rape case that threatens to incarcerate a person and smear his reputation with the paint brush of shame. Judges are often cautious in criminal matters. Once the Defendant cast a material doubt in the mind of the Judge, the case would be resolved in favour of the accused person. Except in cases where there are overwhelming and irresistible evidence (generated from thorough investigation) and the prosecution knows his onion; a good defence attorney may capitalize on the possible loopholes in the prosecution’s case and free the accused person. This may be regarded as technical justice, nevertheless our laws recognize it. There are plethoras of judicial approbation of this settled principle of law. In the case of Ankpegher v. State (2018 LPELR-43906 (SC), the Supreme Court held that:
There is no doubt that in criminal proceedings the onus of proof lies on the prosecution throughout the trial and does not shift. In other words, there is no burden on the accused person to prove his innocence. It is also trite that the standard of proof in criminal proceedings is proof beyond reasonable doubt.
The legal position canvassed above is necessary as a prelude to the actual nature of burden bestowed on the prosecution in rape cases. In the locus classicus of Posu v. The State (2011) 2 NWLR (Pt. 1234) 393 @ 414-417, the Supreme Court held thus:
In a charge of rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove the following:
(a) That the accused had sexual intercourse with the prosecutrix.
(b) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.
(c) That the prosecutrix was not the wife of the accused.
(d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.
(e) That there was penetration……
The most important and essential ingredient of the offence of rape is penetration. The court will deem that sexual intercourse is complete upon proof of penetration of the penis into the vagina.
To be clearer, a prosecutrix in this context is a female victim of rape on whose behalf the State is prosecuting the accused person. These five elements listed by the Supreme Court above must be conjunctively proved. Each element must be proved independently and/or jointly. Failure to prove any of these elements, the prosecution’s case must fail like a pack of cards. This is no little task for the prosecution. The easiest element is to show that the accused person was not the wife of the prosecutrix. Proving other elements may pose some difficulties unless there are glaring evidences which could either be documentary, real, oral, circumstantial or electronic. Showing that the accused person had sex with the prosecutrix without her consent is not enough. The prosecution must proceed to show that the accused had intention to commit the act without her consent or he was reckless. Most importantly, the prosecution must prove that the accused person inserted his penis inside the vagina of a prosecutrix. However, (though helpful for the prosecution’s case) he need not prove that the accused person deposited his semen or that the hymen was ruptured. What the law requires is merely evidence of slightest vaginal penetration. Therefore, where the prosecutor finds that from the evidence(s) available, a case of rape cannot be made out, it is advisable to opt for other sexual based violence charges. If the prosecution did not heed, his failure would be guaranteed.
Furthermore, having established the elements of rape, it can be gleaned from the above cited authorities that a person accused of rape cannot be convicted unless there is evidence of corroboration. This is another huge hurdle to cross. What perhaps makes this requirement for corroboration heart rendering is that it is not a requirement of Statute. It is matter of practice adopted from the common law tradition. Although, it seems that the requirement for corroboration is intended to eliminate a remote possibility of the Defendant’s innocence as stated earlier. However, Section 209 (3) of the Evidence Act makes it mandatory that the evidence of a child below the age of 14 must be corroborated. It means that the testimony of a child below 14 years only cannot convict an accused person of rape unless corroborated. The difficulty in proving rape based on uncorroborated evidence reared its ugly head in the case of Edet Iko v. The State (2001) 14 NWLR (Pt. 732) 221 @ 245 wherein the Supreme Court held that the mere fact that the complainant stated that the accused inserted his penis into her vagina is not ipso facto sufficient proof of penetration in the absence of corroborative evidence like a medical report to support the evidence of penetration. Listen to the apex Court explanation:
The danger sought to be obviated by the common law rule……is that the story told by the witness may be inaccurate for reasons not applicable to other competent witnesses, whether the risk be of deliberate inaccuracy, as in the case of accomplices, or unintentional inaccuracy, as in the case of children and some complainants in cases of sexual offences.
While alluding to the case of Ibeakanma v. Queen (1963) 2 SCNLR 2 194-195 The Supreme Court further stated:
It is an established practice in criminal law that though corroboration of evidence of the prosecutrix in a rape case is not essential in law, it is, in practice always looked for and it is also the practice to warn the jury against the danger of acting upon her uncorroborated testimony.
On the other hand, in Posu’s case two friends took turns to have carnal knowledge of the prosecutrix at about 7:30pm. The act was done in the presence of their uncompromised friend who later stood as a witness for the prosecution. The crime was promptly reported and medical examination was conducted which disclose the presence of semen and laceration in the prosecutrix thigh and abdomen. There was also evidence of the prosecutrix torn pant and clothes. The evidence was so overwhelming that even the five Justices of the Supreme Court took turn to lampoon the trial Judge for passing a light sentence of three years imprisonment in a glaring crime of this magnitude. In our opinion, the Prosecution was also complicit for not cross-appealing the sentence passed on the both Ndewenu Posu and Oke Segun (1st and 2nd Appellant). The point sought to be made here is that the conviction was attained because there was the viva voce evidence of the Appellants’ friend who was present at the scene of crime during the act, medical report that corroborated the testimony of the prosecutrix were tendered and admitted in evidence, real evidence of torn and stained pants and clothes among others were also admitted. In this case, the corroboration was the medical report and the Appellant’s friend. Thus, the poser is how often do victims of rape report the act immediately and obtain medical report when the incidence is still fresh? Medical Report evidencing penetration is a sine qua non and good corroboration for proving rape in law. This is considering that unlike Posu’s case, most rape cases do not have a third party to corroborate the victim’s testimony.
Having disclosed these elements, it now clear that based on the peculiar nature of rape -which often inflicts unimaginable trauma, the crime is usually not reported promptly. Victim of rape mostly report their encounter after considerably time would have elapsed. At this time, evidences would have been tampered with. Medical report may not disclose sexual contact with the accused person. Persons who witness the act may no longer be available and willing to testify. The customary delay in reporting and investigating allegations of rape is the primary reason behind the difficulty in proving glaring cases of rape. Until the National Assembly on whose shoulders it lies, amends the evidential burden on the victims of rape the challenge would continue to stare us in the face. This must also be balanced with the likelihood of some mischievous elements who fabricate allegations of rape against innocent persons to settle scores.
So far, we have made lengthy efforts to convey the attitude of the Court when confronted with an uncorroborated evidence of rape. An uncorroborated evidence of rape may likely fail in our courts. Evidence of corroboration may be a viva voce testimony of a witness or a medical report. Two major factors that limits the possibility of corroboration in Nigeria is the reluctance on the part of victims to report allegations of rape promptly and the fact that most sexual violations are done clandestinely outside the view of third parties who may be a willing corroborator. Although, in exceptional cases the court have held that once the case of the prosecution are weighty and credible enough to lead to an irresistible conclusion that the prosecutrix was rape, the court will convict the accused.(See the case of Ogunbayo v. State (2007) 8 NWLR (Pt.1035) 157). This depends on the peculiar facts and circumstances of each case.
EXPLORING ADDITIONAL AND/OR ALTERNATIVE REMEDIES
In the past the Common law principle often described as the rule in Smith v. Selwyn (1914) 3K.B. 93 constituted a cog in the wheel of progress wherein it is disallowed to prosecute criminal allegation simultaneous with civil claim for damages. Currently, there is no statutory or Rule of court that has codified this principle. The principle seems to conflict with the unimpeded constitutional right of Nigerians to access the Courts to redress wrongs inflicted on them. It is safe to argue that this principle has outlived its relevance and should be jettisoned. It means that a victim of rape or sexual offence can commence a civil action against the accused person to obtain damages, and injunctive remedies where necessary.
Most criminal allegations are laden with civil remedies. It is left for the victim to elect whether to pursue the criminal aspect and abandon the civil aspect which is often the case. The victim can also seek civil remedies, whilst the criminal case subsists. Our position here is to encourage the victims to pursue civil remedies in addition to criminal charges. The civil remedy is particularly suggested because it may afford the victim the opportunity to relief the burden in her mind. The victim would be opportune to narrate her story and by so doing gain closure. The financial and injunctive remedies may also serve as deterrence to violators. Unlike in criminal cases, the burden placed on the victims (as claimant or plaintiff) in civil cases is on a balance of probability (See Section 133 (1) Evidence Act, 2011). The burden is far less. The volume of evidence required is reduced significantly.
The civil claims that may be available to a victim of rape include: assault, battery, false imprisonment, adoption etc. In the course of having non-consensual carnal knowledge of a person, most of the foregoing wrongs would have been inflicted simultaneously. It is therefore open to the victim to seek redress in a civil court against the tortfeasor for the civil wrong done. Children are allowed to sue through their next friend i.e parents or legal guardian. The burden of proof is on the balance of probability. This simply means that the court would give judgment in favour of the person whose truth outweighs the other. Here, the victim is not under obligation to corroborate her evidence.
SUMMARY AND COMMENTS
In the light of the arguments canvassed above, we have established that rape is the highest sexual offence known to law and it comes with heavy legal burden to establish. The criminal legislations on rape are old and yearning for fundamental amendments to fit into today’s realities. Some suggestions have been made on the alternative routes to navigate in a bid to assuage the grievance of victims. Because in the end what victims desire is emotional cum psychological healing over and above all the tortuous (sometimes futile) theatrics that often take place in criminal courtrooms. Accordingly, we have proffered the following as a way forward:
- The burden of proof in rape cases should be codified with the aim of reducing the quantum of legal burden bestowed on the prosecution. The law should also create and adequately fund a special unit of the Nigeria Police Force to be charged with the responsibility of employing scientific means, among others, to thoroughly investigate allegations of rape.
- The social stigma attached to victims of rape must stop to enable persons with similar complaints to boldly report cases to appropriate authorities for timely and effective investigations.
- Sex education and body awareness must be taught at home, schools, churches and mosque with the aim of educating women and children on the sanctity of their sexual organs.
- All the State Houses of Assembly in Nigeria must adopt the Child’s Right Act, 2003 and the VAPPA, 2015 in their respective States. Specifically, the seeming conservative North should be amenable to changes in this regard.
- Rape and sexual violence victims should explore the option of redressing the civil wrongs inherent in these acts as an addition or alternative to criminal remedies.
- The Chief Judge of each state of the federation should make special Rules and designate some Courts (within their sphere of jurisdictional influence) for handling of rape and sexual violence cases with the view to ensure quick dispensation of cases and protecting the privacy of children and young persons.
- Nigerians must desist from media prosecution. Freedom of expression as enshrined in the Constitution is not absolute. Crimes and civil wrongs may be occasioned when flippant and unsubstantiated allegations are peddled to smear the reputation of another. Where a person’s right stops, another’s begins.
- Above all, rapist come from families and homes, parents should educate their children (especially male) on the need to respect the sanctity of the female body. Early tendencies of disregard must be met with commensurate deterrence. If there are no rapists, there would not be rape cases in court.
- Before and while prosecuting a rape case, Nigerians should always consult their lawyer.
JONAH, VICTOR ANAYOCHUKWU
LEGAL PRACTITIONER FROM LAGOS
TEL: +234 7030878896
EMAIL: [email protected]
