The Offence of Rape

Rape is the most egregious form of sexual assaults as it leaves it victim both in psychological
and physiological pain. Thus, there is little wonder why it is criminalised all over the world.
However, the concept of rape as a criminal offence in Nigeria is very narrow and specifically
focused on the feminine gender as victims and the masculine gender as perpetrators. Unlike other
jurisdictions that have expanded and broadened the meaning of rape in their laws to include
female-female rape, male-male rape, female-male/male-female rape, and even marital/spousal
rape; the Nigerian criminal jurisprudence on the subject matter is very backward and is remiss of
the dynamic nature of law especially in a developing and evolving society where nothing is
static. Correspondingly, there is a need for legislative intervention on the subject matter in order
to make the offence of rape contemporaneous with the happenings (or possibilities) of the 21 st
Century Nigeria. Though the National Assembly may have expanded and broadened the concept
of rape with the enactment of the Violence Against the Person (Prohibition) Act, 2015; there is
need for the 36 states of the federation to domesticate and ratify the legislation to make it
applicable to the country as a whole instead of its current position where it is only applicable in
the federal capital territory. Rape is one of the commonest form of sexual assault against a
person. More often than not, the offence is more perpetrated by males against females. This,
there are more female victims than perpetrators. However, that does not rule out the fact that
males (Boys/Men) are also vulnerable and prone to rape and other forms of sexual assault. Little
wonder why the current Criminal Code Act1 strictly limited the definition of rape to vaginal
penetration thereby making an [almost] irrefutable presumption of law that a boy (or man)
cannot be a victim of a rape (but same can be and only perpetrated by a boy or man). However,
it’s hightime Nigerian States left this traditional definition of rape as the law does not match the
contemporary definition of rape the world over.

1
Section 357 of the Criminal Code Act.
What is Rape?
Rape is a type of sexual assault initiated by one or more persons against another person without
that person's consent. The act may be carried out by physical force, or where the person is under
threat or manipulation, or with a person who is incapable of valid consent.

At common law, rape is an unlawful sexual intercourse committed by a man with a woman not
his wife through force and against her will. The common law crime of rape required at least a
slight penetration of the penis into the vagina Also, at common law; a husband could not be
convicted of raping his wife. Furthermore, it is an unlawful sexual activity (especially
intercourse) with a person (usually female) and without consent and usually by force or threat of
injury. It also includes unlawful sexual intercourse without consent after the perpetrator has
substantially impaired his victim by administering, without the victims knowledge or consent,
drugs or intoxicants for the purpose of preventing resistance. It also includes sexual intercourse
with an unconscious person2.

The Meaning of Rape under the Criminal Code

In Nigeria, the offence of rape is prohibited by Section 357 of the Criminal Code Act. By that
section, any person who has unlawful carnal knowledge 3 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 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. The actus reus of rape is committed where a man has
sexual intercourse with a woman without that person’s consent4.

2
Bryan Garner; Black’s Law Dictionary, 10th Edition, p. 1054.
3
Section 6 of the Criminal Code Act provides that when the term ‘’carnal knowledge’’ or the term “carnal
connection’’ is used in defining an offence, it is implied that the offence, so far as regards that elements of it, is
complete upon penetration. “Unlawful Carnal Knowledge’’ means carnal connection which takes place otherwise
than between husband and wife.
4
See also Section 284 of the Penal code Act to wit; (1) 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 the 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. (2) Sexual intercourse by a man with his own wife is not rape, if she has attained to
puberty.
By the wordings of Section 357 of the Criminal Code Act (Supra), a man 5 (or boy) cannot be
raped because he cannot be penetrated. Furthermore, the section specifically used “girl” or
“woman” as part of the definiens of rape. Thus, only a girl or a woman can be a victim of rape.
Consequently, only men can be perpetrators. This current definition of rape adopted by the
Criminal Code Act is not in tandem with more recent legislation on the subject matter as it is
anachronistic, outdated and superannuated. Additionally, it reduced rape to vaginal penetration.

According to the Supreme Court in Iko v State6, rape in legal parlance means a forcible sexual
intercourse with a girl or woman without her giving consent to it. Furthermore, In Natsaha v
State7, the Supreme Court held that to prove rape, the prosecution must prove:

1. That the accused had sexual consent with the prosecutrix;

2. 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;

3. That the prosecutrix was not the wife of the accused;

4. 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;

5. That there was penetration8.

5
Though the Criminal Code Act may have been silent on male rape or limited rape to females, the Act is not
however silent on prohibiting and punishing certain sexual offences against boys (men). Section 215 of the Criminal
Code Act provides that any person who unlawfully and indecently deals with a boy under the age of fourteen years
is guilty of a felony and is liable to imprisonment for seven years. The term “deals with” includes doing any act
which, if done without consent, would constitute an assault as defined in Section 252 of the Criminal Code Act.
Section 352 of the Code is to the effect that any person who unlawfully and indecently assaults another (male or
female) with intent to have carnal knowledge of him or her against the order of nature is guilty of a felony and is
liable to imprisonment for fourteen years. Section 353, any person who unlawfully and indecently assaults any male
person is guilty of a felony, and is liable to imprisonment for three years.
6
(2001) 14 NWLR (PT 732) 221
7
(2017) 18 NWLR (PT 1596) 38; See also Oko v Nigeria Army () for the offence of rape under Section 77 of the
Armed Forces Act.
8
To prove this, the slightest penetration of the vagina will suffice. In fact, it was held in R v Kufi (1960) WNLR I
that there cannot be rape without penetration. In Iko v State (Supra) the court stated that the essential and most
important ingredient of the offence of rape is penetration.
From the above statutory provision and Supreme Court’s decision, it is vividly clear that a
boy/man can only be a perpetrator of the offence while the girl/woman will ever be the victim.
Furthermore, by reducing the offence of rape to vaginal penetration, this totally shuts the door
against male rape as boy/man has no vagina and as such cannot be said to have been “legally
raped” under the current dispensation of the Nigerian jurisprudence on rape.

However, it is submitted that a boy/man can be raped as his mouth and anus can be penetrated
either by another man’s penis or by another man/woman using an object (fingers, hands, toes,
sex toys etc.) to so penetrate him; or by a woman forcefully having carnal knowledge of him
without his consent; or where his consent is vitiated by fraud, or the administration of a
stupefying substance, or by impersonation; or by fear of threat; or intimidation etc.

While many may laugh at the idea of a boy/man being raped by a girl/woman and write same off
as ridiculous or almost impossible simply because majority of the perpetrators are males while
the victims are almost invariably females; society is not also remiss of the fact that a boy/man
can be raped either by his fellow boy/man or a girl/woman as the case may be. Correspondingly,
it is no longer news that a girl/woman can also rape another girl/woman. However, under our
extant rape laws [particularly the Criminal Code Act which has held sway for a long time] the
above instances are totally left out [or cannot be legally called rape where and when included].

In the light of the above, the Nigerian National Assembly 9 enacted the Violence against the
Person Prohibition Act of 2015 to complement and supplement the lacunae and lapses of certain
laws in the country prohibiting specified violence acts against the person as well as punishing
perpetrators and prescribing remedies for the victims of the said prohibited acts. Generally, the
Violence Against the Person (Prohibition) Act criminalises rape 10; inflicting physical injury on a
person11; coercion12; willfully placing a person in fear of physical injury 13; offensive conduct14;
prohibition of female circumcision or genital mutilation 15; frustrating investigation16; willfully
9
The Federal Legislative Arm of Government made up of the House of Representatives and the Senate.
10
Section 1(1) & (2) of the Violence Against the Person (Prohibition) Act
11
Section 2(1) of the VAPP Act
12
Section 3 of the VAPP Act
13
Section 4 of the VAPP Act
14
Section 5 of the VAPP Act
15
Section 6 of the VAPP Act
16
Section 7 of the VAPP Act
making false statement17; forceful ejection from home18; depriving a person of his/her liberty19;
damaging of property with intent to cause distress 20; forced financial dependence or economic
abuse21; forced isolation or separation from family and friends 22; emotional, verbal, and
psychological abuse23; harmful widowhood practices 24; abandonment of spouse, children, and
other dependants without sustenance25; stalking26; intimidation27; spousal battery28; harmful
traditional practices29; attack with harmful substances30; administering a substance with intent 31;
political violence32; violence by state actors33; Incest34; and indecent exposure35.

Rape under the Violence against Person Prohibition Act, 2015

Section 1(1) of the Violence against the Person (Prohibition) Act 2015 provides that a person
commits the offence of rape if-

a) he or she penetrates the vagina, anus or mouth of another person with any other part of
his or her body or with 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

17
Section 8 of the VAPP Act
18
Section 9 of the VAPP Act
19
Section 10 of the VAPP Act
20
Section 11 of the VAPP Act
21
Section 12 of the VAPP Act
22
Section 13 of the VAPP Act
23
Section 14 of the VAPP Act
24
Section 15 of the VAPP Act
25
Section 16 of the VAPP Act
26
Section 17 of the VAPP Act
27
Section 18 of the VAPP Act
28
Section 19 of the VAPP Act
29
Section 20 of the VAPP Act
30
Section 21 of the VAPP Act
31
Section 22 of the VAPP Act
32
Section 23 of the VAPP Act
33
Section 24 of the VAPP Act
34
Section 25 of the VAPP Act
35
Section 26 of the VAPP Act
 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.

There is no doubt that the VAPP Act has expanded the Nigerian Criminal Jurisprudence on
Rape. It has introduced the concept of Oral rape by the penis and the nonconsensual penetration
of the vagina, anus and mouth by any other part of a person’s body or object. Furthermore, the
Act imposes severe punishment for rape than the existing Criminal Code Act and Penal Code
Act. Under the VAPP Act, apart from cases of children below 14 years, the minimum sentence
for rape is 12 years imprisonment.

The traditional concept of rape is restricted to nonconsensual penetration of the vagina by the
penis. Before the enactment of the VAPP Act, no law specifically criminalises Anal Rape.
However, it is submitted that Anal Rape can be punished under section 214, of the Criminal
Code Act and section 284 of the Penal Code Act, which is in pari materia with the former.
Section 214 of the Criminal Code Act provides inter alia that any person who has carnal
knowledge of any other person against the order of nature is punishable with 14 years
imprisonment. It is immaterial that the other person consent to the act. The phrase ‘against the
order of nature” has been defined in Mogaji v. Nigerian Army36, to mean anal intercourse37.

Furthermore, it is also imperative to point out that under the Violence against the Person
(Prohibition) Act, a boy/man can be a victim of the offence of rape. Thus, women can also be
perpetrators of the criminal offence of rape. However, the VAPP Act only applies to the Federal
Capital Territory, Abuja, as it is an Act of the National Assembly and as such must be
domesticated by the thirty states of the federation before same becomes applicable in the states.

Thus, it is submitted that the various state houses of assembly should domesticate the VAPP Act
to make its applicability possible in order for the prosecution (the police) to be able to draft rape
charges in tandem with the VAPP Act instead of relying on that of the outdated Criminal Code
Act as the latter does not reflect contemporary jurisprudence of other jurisdictions on the
offence/crime of rape.

36
(2008) 34 NSCQR (pt 1) 108
37
Prof. Anthony N. Nwazuoke (LL.B, LL.M, P h.D);A Critical Appraisal of the Violence Against Persons
(Prohibition) Act, 2015
The above is long overdue because (as seen below) most countries have expanded the definition
of rape to the provisions of Section 1(1) of the Violent Against the Person Prohibition Act
thereby not limiting the definition of the offence to the traditional feminine vaginal penetration
which consequently makes girls/women victims and boys/men perpetrators. At this point, it is
relevant to examine rape as defined in the laws of other jurisdictions.

Marital (Spousal) Rape

According to the Black’s Law Dictionary, marital (or spousal) rape is a husband’s sexual
intercourse with his wife by force or without her consent. Marital rape was not a crime at
common law, but under modern statutes the marital exemption no longer applies, and in most
jurisdictions a husband can be prosecuted for raping his wife.38

Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the
spouse's consent. The lack of consent is the essential element and need not involve violence.
Marital rape is considered a form of domestic violence and sexual abuse. Although,
historically, sexual intercourse within marriage was regarded as a right of spouses, engaging
in the act without the spouse's consent is now widely recognized by law and society as a
wrong and as a crime. It is recognized as rape by many societies around the world, repudiated
by international conventions, and increasingly criminalized.39

The issues of sexual and domestic violence within marriage and the family unit, and more
specifically, the issue of violence against women, have come to growing international attention
from the second half of the 20th century. Still, in many countries, marital rape either remains
outside the criminal law, or is illegal but widely tolerated. Laws are rarely being enforced, due to
factors ranging from reluctance of authorities to pursue the crime, to lack of public knowledge
that sexual intercourse in marriage without consent is illegal.

Marital rape is more widely experienced by women, though not exclusively. Marital rape is often
a chronic form of violence for the victim which takes place within abusive relations. It exists in a
complex web of state governments, cultural practices, and societal ideologies which combine to
influence each distinct instance and situation in varying ways. The reluctance to criminalize and

38
Black’s Law Dictionary, 10th Edition, p. 1450
39
https://en.m.wikipedia.org/wiki/Marital_rape
prosecute marital rape has been attributed to traditional views of marriage, interpretations of
religious doctrines, ideas about male and female sexuality, and to cultural expectations of
subordination of a wife to her husband—views which continue to be common in many parts of
the world. These views of marriage and sexuality started to be challenged in most Western
countries from the 1960s and 70s especially by second-wave feminism, leading to an
acknowledgment of the woman's right to self-determination (i.e., control) of all matters relating
to her body, and the withdrawal of the exemption or defense of marital rape.

Most countries criminalized marital rape from the late 20th century onward—very few legal
systems allowed for the prosecution of rape within marriage before the 1970s. Criminalization
has occurred through various ways, including removal of statutory exemptions from the
definitions of rape, judicial decisions, explicit legislative reference in statutory law preventing
the use of marriage as a defense, or creating of a specific offense of marital rape. In many
countries, it is still unclear whether marital rape is covered by the ordinary rape laws, but in
some it may be covered by general statutes prohibiting violence, such as assault and battery laws.

In the United States of America, Marital (spousal) rape is criminalized in all 50 states of the
country. The first US case on this point was Oregon v. Rideout 40. It was a trial held in Marion
County Circuit Court in 1978 in Salem, Oregon. John Rideout was on trial for an accusation of
raping his wife, Greta Rideout. John Rideout was acquitted in the jury trial, but was the first man
in the United States to be charged with raping his wife while he was still living with her.

Correspondingly, marital rape is also criminalized. In R v Clarke41 a husband was found guilty
of raping his estranged wife, as it was held that a court order for non-cohabitation had revoked
the consent. A similar result was reached in R v O’Brien42 after the grant of a decree nisi for
divorce. In R v Steele43 the husband was convicted after had given an undertaking to the court
not to molest his wife; and in R v Roberts44 a formal separation agreement was in place. R v S45
held that the granting of a family protection order was sufficient to negate any implied consent.

40
https://en.m.wikipedia.org/wiki/Oregon_v._Rideout
41
[1949] 2 All ER 448; 33 Cr App R 216
42
[1974] 3 All ER 663
43
(1976) 65 Cr App R 22
44
[1986] Crim LR 188
45
(unreported), 15 January 1991
Similarly, in the more recent case of R v R46, the House of Lords affirmed the defendant’s
conviction of marital rape. The facts of the case were as follows: R married his wife in August
1984 but the marriage became strained, and his wife moved back to her parents' house in October
1989, leaving a letter expressing her intention to seek a divorce. A few weeks later, in November
1989, R broke into the house while his wife's parents were out, and attempted to force her to
have sexual intercourse with him against her will. He also assaulted her, squeezing his hands
around her neck. The police arrested R and charged him with rape contrary to section 1(1) of the
Sexual Offences (Amendment) Act 1976, and assault occasioning actual bodily harm contrary to
section 47 of the Offences against the Person Act 1861. The couple was divorced in May 1990.

The judge rejected a submission on behalf of the defendant that he could not be found guilty of
rape due to the marital rape exemption. He then pleaded not guilty to rape, but guilty to
attempted rape and to the assault charge. He was sentenced to three years' imprisonment for
attempted rape and 18 months' imprisonment for assault, with the sentences to run concurrently.

R appealed the conviction for attempted rape to the Court of Appeal (Criminal Division). Lord
Lane delivered the judgment of the court in March 1991, dismissing the appeal. He outlined
three possible outcomes to the legal issue: first, a literal approach that it was always impossible
for a husband to rape his wife; or second, a compromise approach, that rape was only possible in
cases where a wife's presumed consent was deemed to be negated, with an expanding and open-
ended list of possible exceptions. He was not in favour of either of those outcomes, and instead
he adopted the third solution, one of more radical reform, abolishing the legal fiction of a marital
rape exemption. He stated thus;

There comes a time when the changes are so great that it is no longer enough to create
further exceptions restricting the effect of the proposition, a time when the
proposition itself requires examination to see whether its terms are in accord with
what is generally regarded today as acceptable behaviour.… the idea that a wife by
marriage consents in advance to her husband having sexual intercourse with her
whatever her state of health or however proper her objections (if that is what Hale

46
[1991] 4 All ER 481; (1992) 94 Cr App R 216; [1991] 3 WLR 767.
 meant), is no longer acceptable. It can never have been other than a fiction, and
fiction is a poor basis for the criminal law. …

It seems to us that where the common law rule no longer even remotely represents
what is the true position of a wife in present day society, the duty of the court is to
take steps to alter the rule if it can legitimately do so in the light of any relevant
Parliamentary enactment. …We take the view that the time has now arrived when the
law should declare that a rapist remains a rapist subject to the criminal law,
irrespective of his relationship with his victim.

This is not the creation of a new offence, it is the removal of a common law fiction
which has become anachronistic and offensive and we consider that it is our duty
having reached that conclusion to act upon it.

R appealed again to the House of Lords. His appeal was also dismissed and R was thus convicted
of raping his wife.

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.

Under the English common law, marital rape was impossible. According to Sir Matthew Hale;
"the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract the wife hath given herself up to her husband, consent
which she cannot retract47". This reasoning flowed from and was based on the implied terms of a
valid contract of marriage. Thus, by consenting to marriage, a wife had given her body to her
husband and also gave irrevocable consent to sexual intercourse with her husband.

The above position was also reiterated in The first edition of John Frederick Archbold's Pleading
and Evidence in Criminal Cases in 1822 where e stated that: "A husband also cannot be guilty of
a rape upon his wife".

Based on the above former English Common Law position on marital rape, a husband had
successfully relied on the exemption in England and Wales to avoid a conviction for rape in at
least four recorded cases to wit; R v Miller48; R v Kowalski49; R v Sharples50 and R v J51. In
Miller, Kowalski and R v J, the husbands were instead convicted of assault or indecent assault,
with the courts finding that the marital defence only applied to the crime of rape (which was then
defined as vaginal sex only) and not to other sexual acts such as fellatio.

The Nigerian position on Marital Rape

Hitherto, there’s no law criminalising or prohibiting marital rape in Nigeria. Thus, the
anachronistic statements of Matthew Hale (the husband cannot be guilty of a rape committed by
himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath
given herself up to her husband, consent which she cannot retract) and John Frederick Archbold
(A husband also cannot be guilty of a rape upon his wife) which is to the effect that a husband
cannot be guilty of raping his wife is true in the contemporary Nigerian criminal jurisprudence
on rape. It is appalling that the long abandoned English Common Law rules on marital/spousal
rape is still good law in 21st Century Nigeria. This is a clear indication that the Nigerian
Legislature, both at the state and federal levels, are not living up to the expectations of a dynamic
society as ours.

47
Sir Matthew Hale; Historia Placitorum Coronæ (History of the Pleas of the Crown), 1736
48
[1954] 2 QB 282; [1954] 2 WLR 138; [1954] 2 All ER 529
49
(1987) 86 Cr App R 339
50
[1990] Crim LR 198
51
[1991] 1 All ER 759
However, though a husband cannot rape his wife, he may be charged and found guilty of
indecent assault following the common law cases of R v Miller52; R v Kowalski53; and R v J54.
The impossibility of marital/spousal rape in Nigeria, apart from legislative inertia, is further
compounded by the definition of rape under the Criminal and Penal Code Act which gives
marital exemption to the husband via its definition and elements.
Rape under the Child Rights Act

Section 31 of the CRA provides: (1) No person shall have sexual intercourse with a child. (2) A
person who contravenes the provision of Subsection (1) of this section commits an offence of
rape and is liable on conviction to imprisonment for life. (3) Where a person is charged with an
offence under this section, it is immaterial that‐ (a) the offender believed the person to be of or
above the age of eighteen years; or (b) the sexual intercourse was with the consent of the child

A child under the CRA is a person under the age of 18 years. 55 Rape under the CRA is a strict
liability offence and the offence is gender neutral. For example, if a 17-year-old person walks up
to a 30-year-old man and say come and have sex with me, and the man does so, he has
committed rape, even if he brings evidence to show that the girl actually approached him, paid
for a room and forced him to commit the act. A child is not capable of giving his or her consent.
So any sexual intercourse with anyone under the age of 18 years regardless of the child’s consent
is rape against the child.

Corrective Rape

Corrective rape, also called curative or homophobic rape, is a hate crime in which one or more
people are raped because of their perceived sexual orientation or gender identity. The common
intended consequence of the rape, as seen by the perpetrator, is to turn the person heterosexual or
to enforce conformity with gender stereotypes. The term corrective rape was coined in South
Africa after well-known cases of corrective rapes of lesbian women such as Eudy Simelane (who
was also murdered in the same attack) and Zoliswa Nkonyana became public. Popularisation of
the term has raised awareness and encouraged LGBT+ people in countries across the world to
52
[1954] 2 QB 282; [1954] 2 WLR 138; [1954] 2 All ER 529
53
(1987) 86 Cr App R 339
54
[1991] 1 All ER 759
55
S.277 of the Child Rights Act.
come forward with their own stories of being raped as punishment for or in an attempt to change
their sexual orientation or gender identity. Although some countries have laws protecting
LGBT+ people, corrective rape is often overlooked. In one of the few cases to attract press
attention, in 2008, Eudy Simelane, a lesbian, was gang-raped and stabbed to death. Her naked
body was dumped in a stream in the Kwa Thema township outside Johannesburg. A soccer
player training to be a referee for the 2010 FIFA World Cup, she was targeted because of her
sexual orientation. In 2011, Noxolo Nogwaza, 24, was raped, and stabbed multiple times with
glass shards. Her skull was shattered. Her eyes were reportedly gouged from their sockets. Ms.
Nogwaza had been seen earlier that evening in a bar with a female friend.

Corrective rape is the use of rape against people who do not conform to perceived social norms
regarding human sexuality or gender roles. The goal is to punish perceived abnormal behavior
and reinforce societal norms. The crime was first identified in South Africa, where it is
sometimes supervised by members of the woman's family or local community. Corrective rape is
a hate crime. However, due to homophobia and heteronormativity, hate crimes based on
sexuality (as opposed to race, gender, class, age, etc.) are often not recognized by authorities. A
2000 study suggested an atmosphere supportive of hate crimes against gay men and lesbians,
reactions to hate crimes by the broader community, and responses by police and justice systems
contribute to corrective rape. Some people believe corrective rape can "fix" people who do not
conform to gender norms or who are not heterosexual. ActionAid reports that survivors
remember being told that they were being taught a lesson. Some perpetrators of the hate crime
are impelled by a sense of misogyny and chauvinism. Some sources argue that many cases of
corrective rape are caused by drawing moral conclusions from the nature–nurture debate. Despite
the scientific community believing that sexual orientation is the result of biology and
environment, many people do not believe that homosexuality (or other forms of non-
heterosexuality) has a genetic basis and instead believe it is only the result of one's environment.
Because of this, some of these people believe sexual orientation can be changed or, as they see it,
fixed.

Post-penetration Rape
Post-penetration rape may be defined as a situation in which both parties initially consent to
sexual intercourse, but, at some time during the act, one party communicates to the other that he
or she is revoking consent and wishes to terminate the intercourse. After the revocation of
consent, the other party forces the revoking party to continue the intercourse against his or her
will. Post-penetration rape is not a convictable offense in every state. The first post-penetration
rape case in a United States court occurred almost three decades ago, and, since that time, post-
penetration rape cases have increasingly appeared in different jurisdictions and have been
subjects of varying analyses. Some courts disallowed the possibility of post-penetration rape,
entirely based on a reading of the state’s rape or sexual assault statute or based on persuasive
cases from other jurisdictions. Others found that a broad reading of the state’s rape or sexual
assault statute would allow a post-penetration rape conviction. Finally, some courts found that, in
addition to following precedent or the language of a statute, common sense or compassion
should prompt a court to allow a post-penetration rape claim to pass muster.

Post-penetration rape is defined as a situation in which both parties initially consent to sexual
intercourse, but at some time during the act of intercourse, one party, typically the woman,
withdraws her consent; after this withdrawal of consent, the other party, typically the man, forces
the woman to continue intercourse against her will. The question that has arisen in these cases is
whether a rape can legally occur if a victim initially consents to intercourse but then withdraws
her consent “post-penetration.” The answer to this question has been different in different
jurisdictions and different courts. Some courts have found post-penetration rape to be a legal
impossibility—that is, if a woman consents to sexual intercourse, that initial consent prevents the
sexual act from ever legally becoming a rape (e.g., State v. Way, North Carolina, 1979). Other
courts have held that a withdrawal of consent post-penetration negates any earlier consent and
thereby subjects the defendant to rape charges if he continues what has become nonconsensual
sexual intercourse (e.g., In re John Z, California, 2003).

Battle v. Maryland, which determined that if a woman “consents [to sexual intercourse] prior to
penetration and withdraws the consent following penetration, there is no rape”.
In Re John Z,56 a seventeen-year-old girl attended a party with her new boyfriend. Everyone at
the party drank alcohol, but she did not. Although the girl said that she was not ready for sex, she
engaged in a three-way sexual encounter at the party with her boyfriend and his friend, John.
During the encounter, John left the room and the girl and her boyfriend had sexual intercourse.
When it was over, her boyfriend left the room and John returned. Wordlessly, John and the girl
began having sex. The girl, having second thoughts, rolled on top of John and told him she had
to go home. He rolled himself on top of her and responded, “Just give me a minute.” The girl
replied, “No. I have to go home.” About one minute later, John stopped the intercourse. In 2003,
the California Supreme Court held that John’s actions constituted a forcible rape. The California
Supreme Court held that: (1) a withdrawal of consent by the victim effectively nullified any
earlier consent and subjected the male to forcible rape charges when he persisted in what had
become nonconsensual intercourse; (2) the offense of forcible rape occurred when, during
apparently consensual intercourse, the victim expressed an objection and attempted to stop the
act, and the defendant forcibly continued despite the objection; and (3) the evidence was
sufficient to show that the victim withdrew her consent, communicated that fact to defendant,
and defendant used force to resist the victim's attempt to stop the act.

Consent Requirement in Rape Cases

Consent is primarily a legal construct that has its origins in three different doctrines of law. The
first is informed consent. After World War II, the idea of informed consent primarily emerged in
response to coerced or involuntary medical experimentation, which was brutally imposed in Nazi
concentration camps. More broadly, informed consent comprises the idea that one should know
and provide affirmative agreement to a procedure, be it a science experiment or a medical
procedure. The second notion of consent is the legal capacity to consent. This is based on the
idea that one has the capacity, knowledge and ability to understand what one is promising in a
contract and what is being promised. Finally, the third aspect of consent arises from criminal
law, and covers amongst other things ‘victimless crimes’. In referring to victimless crimes, there
is a need to albeit offer a working definition of same. Victimless crimes are generally used to
refer to crimes that actually have no victims. Such crimes include drug use and prostitution
among other crimes. In such crimes, the consent of the parties is irrelevant, because the state,
crown or ‘the people’ are deemed to be injured, and it is their interest that is protected by the
56
29 Cal. 4th 756, 128 Cal. Rptr. 2d 783, 60 P.3d 183 (2003)
law. The gist of the act of rape is consent of the woman. Presence or absence of consent must be
pronounced on by the court, R. v. Harling (1938) 1 AER 307, Humphrey J stated, inter alia, “in
every charge of rape, the fact of non-consent must be proved to the satisfaction of the jury” As
earlier stated consent obtained by force, fraud, fear or intimidation, is not consent. In the case of
Ahamefule v. Imperial Med. Centre, consent was defined by the court thus: ‘consent in legal
parlance involves an element of volition, a voluntary agreement which is the deliberate and free
act of the mind.’ It has been argued in some settings that consent may be categorized into three.
For purposes of arriving at our type of consent it is pertinent to touch on the three before moving
on with the discourse. The three types of consent include explicit consent, implicit consent and
opt-out consent. Explicit consent is referred to as that where the individual has informed
knowledge about what information he or she is giving. In explicit consent, he or she has the
option to give or not to give the consent required. It is the type of consent required in a sexual
matter. It can also be taken as informed consent. Implicit consent on the other hand is consent
that is implied from your conduct. It suffices to say that a person reads from your conduct the
fact that you said yes or no. This kind of consent is the one that is operational in Nigeria
especially when sex is involved. This is so because some have formed the onerous opinion that a
woman’s ‘no’ means a subtle ‘yes’. In other words, it has been argued that a woman’s ‘no’ is
indirectly a ‘yes’ and that from her conduct while verbally saying ‘no’ she desires the sexual act.
This type of consent is wrong and cannot be used to measure consent in sexual matters. The third
type of consent which is the ‘opt out’ consent entails that the person in question has only one
option and that is to withdraw consent. So when faced with the ‘opt out’ consent, the person is
expected to withdraw consent.

Consent refers to the permission or freedom and capacity to make a choice on whether to have
sex or not. When a woman says “no” to sex, her “no” should be taken as “no”. It is possible that
a woman who gives her consent to a sexual intercourse at the beginning may later change her
mind in the course of the “act” and it is also possible that a woman who does not give her
consent at the beginning may later decide to consent to it. Can it be said that there is rape in any
of the situations?

Lack of consent is key to the definition of rape. Consent is affirmative “informed approval,
indicating a freely given agreement” to sexual activity. It is not necessarily expressed verbally,
and may instead be overtly implied from actions, but the absence of objection does not constitute
consent. Lack of consent may result from either forcible compulsion by the perpetrator or an
inability to consent on the part of the victim (such as people who are asleep, intoxicated or
otherwise mentally compromised). However consent of the victim is a complete defence.

Under the Nigerian law, “consent” is not clearly defined in the Criminal or Penal Code. It
presupposes that the meaning of the term ‘consent’ can be found elsewhere outside the ambit of
the Criminal Code. Under the Sexual Offences Act, Section 74 seeks to define consent as a
situation where the person offers his agreement by choice and at the same time has the freedom
and capacity to make that choice. It follows that in prosecuting such a matter, the prosecutor
must ensure that the complainant had the capacity to make a choice about whether or not to take
part in the sexual activity at the time in question and secondly establish that the choice was made
freely and not in any way constrained or obtained by coercion. Where these two are satisfactorily
established, then it can be said that it is consensual sex.

However, under the UK’s Sexual Offences Act, consent is extensively defined and it amounts to
rape, if a man continues sexual intercourse after a woman withdraws her consent or starts a
sexual intercourse where there is no consent, not minding the fact that consent is given midway.
In India, consensual sex given on the false promise of marriage constitutes rape.

See R. v. Williams (1923) 3 KB 340 where a choirmaster deceived the victim into believing that
the act of sexual intercourse will improve her voice. Held: The consent given is not consent. See
also R. v. Camplin (1845) 1 COXCC 220 where a woman was ravished while in a state of
intoxication. Held: Rape is committed. Osadieye v. The State, where the accused person gave
drugs and liquor to the victim allegedly for the purpose of exciting her. Held: Putting her in such
state defeats consent. R. v. Jones (1861), where a woman submitted as a result of fear of bodily
injury or death; R. v. Lang (1975) 6 Cr. A.P.R. 50.

We must note that the absence of the use of force without more would not support the claim that
there was consent. Therefore, it has been held to be rape to ravish a sleeping woman. See R. v.
Mayers (1872) 12 COX CC 311. We have to note that if the person raped is too young as to
understand the nature of the act it does not satisfy the requirement of consent. See R. v. Howard
(1965) 3 AER6 where the accused person was convicted of attempting to rape a six year old girl.
The court stated that if the girl is under age, the prosecution must prove physical resistance by
her or that her understanding and knowledge were such that she was not in a position to consent
or resist.

Section 293 of penal code states, that a woman below the age of 16 giving consent to her teacher,
guardian or anyone entrusted with her care is no consent. See section 39 of penal code’s
definition of consent.

In DPP v. Morgan (1976) AC 192, the court held that a defendant could not be convicted of rape,
if he believed, albeit mistakenly, that the complainant consented even though he has no
reasonable ground for that belief (it appears that section 1(2) of Sexual Offences Amendment
Act 1976 was directed at this decision by injecting the test of a reasonable man’s belief).

Further, in the position in England under section 2 (1) where a defendant had pleaded not guilty
to a charge of rape except with the leave of the judge no evidence, question, or cross-
examination can be adduced on the defendant’s behalf of any other sexual experience of the
complainant with another person See Hinds v. Buiter (1979); R v. Mills.

Thus, in Nigeria for the time being the position seems to be that when consent is in issue in an
indictment for rape the trial judge must examine the following:

(a) Is the victim virtuous?

(b) Did she struggle, scream or otherwise call for help?

(c) Did her body or clothing show any mark of tear indicating resistance or force?

It has been held in R. v. Hinton that a negative answer to the above questions carry a strong
presumption of the falsity of the complainant’s testimony.

In State v. Ojo, the complainant was a virgin. The vice-principal of her school testified that the
complainant came to him in a distressed and injured condition immediately after the alleged
offence. The court held that her circumstances were convincing for the court to believe the truth
of her story.