Editor’s note: In case you missed it,
read A Lawyer’s Perspective: 50 Answered Questions on Rape Pt. 1
6. Is rape committed when a sexual intercourse takes place with a sleeping or drunken woman?
Yes. It is a case of rape because it means that there is no consent.
7. What is punishment[1] for rape?
Nigeria – life imprisonment (maximum but it may be less)
India- life imprisonment or death
France- 15 years’ imprisonment to death
US- life imprisonment
UK- life imprisonment
Saudi Arabia- death
North Korea- death
Israel- 16 years’ imprisonment
China- death
Egypt- death
8. What is the punishment for making a false allegation of rape against any man?
There is no criminal penalty for making a false allegation of rape against a man in Nigeria. However, if after trial, a suspected rapist is found to be innocent of the allegation, he may bring a civil action (technically called malicious prosecution) to claim for damages. An action for defamation, after trial, is, on the other hand, not likely to succeed.
9. How can one establish a case of rape in court?
In a case of rape, the prosecutor must be able to prove the following elements beyond reasonable doubt:
– That an accused person has sexual intercourse with a woman against her will;
– That the act of sexual intercourse is proved by penetration of the accused person’s penis into the woman’s vagina;
– That the victim is not his wife.
10. Can rape be proved where a victim does not sustain any physical injury or in the case of a virgin, where her virginity is still intact?
It is possible to prove rape in any of these situations, provided that there is evidence to establish penetration and lack of consent. Sustaining physical injury is not compulsory, though it may help a case better if present. Rape is complete on penetration, even if the hymen is still intact.
11. Is it compulsory to have medical evidence in proving a case of rape?
It is good to have medical evidence in establishing rape but it is not compulsory. A case of rape may be convincingly proved, without medical evidence, where the accused person makes confessional statement or there is an eye witness.
12. Is a medical report obtained from a private hospital acceptable in court?
Yes. It is acceptable. However, in practice, it is medical reports from government-owned hospitals that are usually tendered in court.
13. What are the defences to a person accused of committing rape?
– Presence of consent
– Lack of penetration
– Marital relationship
– Insanity (no offence is committed, if a madman rapes a woman)
14. Is a rape suspect entitled to be defended by a lawyer at the expense of the State/Government?
No. A rape suspect may obtain the services of a lawyer of his choice but if he is financially handicapped to secure one, the State is not obligated to provide him a legal representative free of charge, unlike in the case of persons standing trial for murder or armed robbery
[2]. A rape suspect may as well decide to represent himself without a lawyer.
15. Does a rape victim need to have her own lawyer?
No. Once a rape case is reported to the Police, the latter will commence investigation; take statements of the victim and that of the perpetrator and other witnesses, if any. The Police may also procure a medical report and if, in their opinion, there is sufficient evidence in respect of the case, forward all the pieces of evidence compiled in a case file to the Ministry of Justice which will, in turn, ensure that the perpetrator is charged to court and prosecuted accordingly. A lawyer, from the Ministry, will be a legal representative of the State as well as the victim. Rape, being a criminal case, is regarded as an offence against the State and this is why the victim will not have to pay any money to the Government lawyer for him or her to prosecute the perpetrator. However, any victim who wishes may decide to secure the services of an independent lawyer who will also attend court each time the case comes up. Such a lawyer is called
watching brief counsel because he or she can only be seen but cannot be heard.
To be continued…
About the writer:
Kehinde Adegbite is a lawyer of over 10 years’ post-call experience. He is at present a Principal State Counsel, Ministry of Justice, Ibadan, Oyo State. He is the author of
HOW TO WRITE YOUR WILL WITH EASE and
LEARNING THE LAW IN NIGERIA. The author is presently working on another book titled
WHAT THE LAW SAYS ABOUT MARRIAGE AND DIVORCE. His books, though useful for lawyers, are written essentially for non-lawyers.
Blog:
www.gettipsforeveryday.blogspot.com
Contact:
barrykehinde@yahoo.co.uk; 0708-291-8395
NOTES
[1]. Rohit B., “This Is What They Do To Rapists In Different Countries Around The World”, available at
http://www.scoopwhoop.com/inothernews/punishing-rape-globally/ (visited last on 5
th December, 2015).
[2]. It is a crime which attracts a punishment of not less than three years imprisonment and which is usually tried by a court not lower than a high court e.g. rape and murder. However, magistrate court may try few felonious cases.
