The offence of rape: A comparative analysis between Nigeria, Australia and Islamic law

Taiwo Onifade

Rape under the Nigerian law is classified under Sexual offences. Sexual offences are generally defined as a sexual activity that a person has not consented to and it can be refers to a broad range of sexual behaviors that make the victim feel uncomfortable, frightened or threatened.

It includes rape, incest, bestiality, sexual harassment or molestation and child sexual offence.

This article sought to examine the position of the law on rape in Nigeria and a comparative analysis with other jurisdictions namely; Nigeria, Australia and Islamic Law.

Under the Nigerian law, there are various legislations providing for the offence and punishment for rape some of them are;

1. The Criminal Code Act Cap C39 LFN 2004 – Applicable in southern parts of Nigeria.
2. The Penal Code Act- Applicable in the Northern parts of Nigeria.
3. The Criminal Laws of Lagos – Applicable only in Lagos State
4. The Violence against Persons Prohibition Act – Applicable only in the FCT Abuja.
5. The Child Rights Act – this is only applicable in the States which have domesticated

Although the constitution of the federal republic of Nigeria did not specifically prohibit rape, it clearly prohibits torture[1] and other inhuman or degrading treatment. Section 34(1) of the 1999 constitution[2] as amended states that: “every individual is entitled to respect for the dignity of his person, and accordingly (a) no person shall be subjected to torture or to inhuman or degrading treatment”.

A combined reading Section 357 and 358 of the Criminal Code ^[3]  defines Rape as having unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false act, or, in case of a married woman, by personating her husband.

This offence is punishable by imprisonment for life, with or without caning.

Rape is therefore committed if a man has sexual intercourse with a woman;

1. a)      Without her consent or;
2. b)      While putting her in fear of death or hurt or;
3. c)      Misrepresenting as the husband of the woman or;
4. d)     Having carnal knowledge of a girl under 14 years, with or without her consent or;
5. e)      Having carnal knowledge of a girl with unsound mind.                                                   The Penal Code further defines rape as when a man has sexual intercourse with a woman against her will, without her consent, or with incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained:

• By putting her in fear of death or hurt
• By a person impersonating a married woman’s husband in order to have sex

Also the same Penal Code explicitly states that sexual intercourse by a man with his wife is not rape.

The Violence against Persons Prohibition Act (VAPPA) clearly defines rape as when a person intentionally penetrates the vagina, anus or mouth of another person with any other part of his/her body or anything else without consent, or with incorrectly obtained consent. Under this law, consent can be incorrectly obtained where it is obtained:

• by force/threats/intimidation
• by means of false and fraudulent representation as to the nature of the act
• by the use of substances capable of taking away the will of that person
• by a person impersonating a married woman’s husband in order to have sex

The VAPPA seems like a very progressive piece of legislation. Unfortunately, the law is only applicable in the FCT, Abuja. It does not apply in any of the other States of the Federation.The severity of the offence of rape cannot be over emphasized, little wonder why a lot of pundits have advocated stricter punishments for the offence.

In the case decided of Popoola v State (2013) 17 NWLR (Pt 1382) P. 100

Per Ngwuta J.S.C AT PAGE 12, Paras D-E said

“I join my learned brother in expressing disappointment that the appellant was given a lenient term of five years in prison. I think that the severity of punishment for rape, with particular reference to statutory variety, should rank next to capital punishment”

The Penal Code (applicable in Northern part of Nigeria), goes further to say even where the girl is a wife of the person, such person will be guilty of rape if she has not attained puberty.

The case of the former Governor of Zamfara state who was alleged to have married a 13 year old girl from Egypt comes in handy. In such situation, if the girl has not attained puberty and he has carnal knowledge of her, he will be guilty of rape. However, what will be regarded as attaining puberty under the law will probably be subject of debate.

In Nigeria, for the offence of rape to be properly established, there must be corroborative evidence which usually comes from eyewitnesses account or medical evidence. As regards eyewitnesses’ corroboration, the law requires that such witnesses must have witnessed the actual penetration of the victim’s vagina.

The law requires that there must be penetration of the vagina, no matter how slight. Another way through which corroboration can be established is through medical evidence the lack of human and material resources to medically investigate and reach conclusive findings in a rape case leaves a sour taste in the mouth of the victim.

Rape under the Australian law

Rape is governed by Section 48 of the Criminal Law Consolidation Act^[4] and consists of sexual intercourse with another person without consent, while knowing or being recklessly indifferent as to whether there is consent. ^[5]The maximum penalty for rape is life imprisonment.^[6] Sexual intercourse under the law[7] is defined as including any activity, whether heterosexual or homosexual, involving penetration of a person’s vagina, or anus by any part of another person’s body or by any object or fellatio or cunnilingus.

A person is guilty of rape if they know that the other person does not consent (or has withdrawn their consent) or are recklessly indifferent as to their consent. “Reckless indifferent” means a failure to consider the other person’s wishes. Section 47 of the Act further stated that a person I s recklessly indifferent with regard to consent if they:

• Are aware the other person might not be consenting, but continue anyway;
• Are aware the other person might not be consenting and fail to take steps to find out if the other person is consenting;
• Do not give any thought to whether the other person is consenting.

Every state and territory of Australia has different criminal laws and therefore, different laws relating to the age of consent. In Western Australia, the age at which a person can validly consent to sex is 16. This is the same for males and females and for heterosexual and homosexual sex.

A person who is aged 16 or 17 cannot validly consent to sex with a person who is in a position of authority over them. In these cases, the age of consent is 18.

Rape under Islamic law

Rape is a sexual, social and violent crime that has continuously been on the rise as the morals of the society decline and the religious values deteriorate. The religion of Islam like all other monotheistic religions looks down with disgrace on all kinds of sexual crimes.

Rape, being a combination of several kinds of crimes wrapped under one umbrella is objectively one of the worst. Rape is translated in Arabic as ighitisab or zina bi al-ikrah which literally can be translated back to English as forcible unlawful sexual intercourse.^[8]

It must be noted that although rape is known as zina bi al-ikrah, it is different from zina itself.^[9] Zina is regarded as a violation of the right of Allah, whereas rape is regarded as the violation of not only the right of Allah but those of a human being.

It must be noted that there is no equivalent term for rape in the Qu’ran. Likewise there is not a single verse in the Qu’ran which even remotely discourages forced sex. In contrast, there are several verses in the Qu’ran which gives the green light to rape and other sexual crimes against captured and enslaved women.^[10]

However, Allah in the Quran condemns all the elements that constitute the crime of rape, i.e. sex, violence and oppression. The Quran strongly condemns the oppression element of rape in the strongest possible language. God in the Quran, describes the oppression as “worse than murder”.^[11] This puts rape among the worst crimes committed by human being in the sight of God.

The punishment for a rapist has been considered by different Islamic scholars.

They consider the punishment to be the same as for the hadd of zina (that is being stoned to death for the married offenders or receiving 100 strokes of the whips and deportation for the unmarried offenders) the hadd of Hirabah (here they shall be killed or crucified or their hands and their feet be cut off on opposites sides or be exiled from the land.) or to come under the category of ta’zzir (here the  punishment has not been fixed by law, and the qadi which is the judge is allowed to use his discretion as to the form in which such punishment is be inflicted and its measure).

Differences and similarities of rape as a sexual offence in the Three Jurisdictions

1. Age of consent according to section 277 of the Child Right Act in Nigeria is 18 , but in Western Australia is 16 while under penal code 14 years, and Islamic law 13 years.
2. In Nigeria, sex with a child has no defense as long as penetration is proven in Court. However, in Australia, it is a defense for a person accused of having sex with a child, if;
3. he is married to the Child,
4. He was at the time of the act 3 years younger than the child
5. He reasonably believed the child to be above 16.
6. Rape is not expressly provided for under the Islamic Law rather it prohibits and frowns at its various elements, Islamic Jurist suggest 100 stripes or deportation for the unmarried offenders, stoning to death, killing or crucifying, maiming of hands and feet or being made an outlaw if rape is proven. However Rape is a serious offence under the Nigerian and Australian Law punishable with life imprisonment.
7. Rape under Nigerian and Australian laws are appealable but under Islamic law, they are not because it is right for Allah to forgive as no individual has right to pardon any person who commit such.

In conclusion, we cannot over emphasize the need to have laws that prohibit and punish the offence of rape in any given society.

However sadly we discovered that although these laws exist and the offences are clearly spelt out, it is difficult to prove the offence of rape due to the various elements that must be established before the court can convict an accused of rape.

Also the social stigma faced by the victims of rape has led to low report of the offence and this has in turn led to low prosecution of the offence of rape.

For the fight against rape to be a monumental success a wide range of awareness programs must be carried out to sensitize the people on the topic and for them to know the right steps to take when confronted with this issue.

Also instead of treating the endemic called rape superficially the government should critically find solutions to the root cause of this problem which includes but not limited to: psychological problems, high rate of poverty in the society, high rate of unemployment in the society etc.

Also it has been argued that stricter punishment be meted out to accused persons found guilty of the offence. We also propose that anybody who wrongfully accuses another of rape should be sanctioned accordingly and the accused person who was wrongfully accused of the offence of rape be entitled to financial compensation or any other remedy deemed fit by the court of competent jurisdiction.

[1] Omolola tosan Akinwole & Osakue S. Omoera: A review of literature: Rape and communication media strategies in Nigeria.

[2]1999 CFRN as amended 2011

[3]Cap “C38”, Laws of the Federation, 2004.

[4]Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008

[5]https://legal-dictionary.thefreedictionary.com/sexual+offence the free dictionary by Fernanda Dahlstrom accessed on 15/02/2020.

[6]Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008

[7] ibid

[8] Azman Mohd Noor Punishment for Rape in Islam

[9] Ibid

[10] Qu’ran 4:23-24, Qu’ran 23:1-6

[11] Qu’ran 2:217