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Did you know that rape is the most serious kind of sexual assault and it is punishable with imprisonment for life with or without whipping? The offence is defined in section 357 of the criminal code as follows: Any person who has unlawful carnal knowledge of a woman or girl, without her consent or with her consent, if the consent is obtain by force or by means of threat or intimidation of any kind, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by impersonating her husband, is guilty of an offence called rape. CAPACITY According to section 30 of the criminal code, a male person under the age of twelve years is presumed to be incapable of having carnal knowledge. It follows from this that he cannot be guilty of the offence of rape or attempted rape although on such a charge he may be convicted for indecent assault. The presumption is one of law and cannot be rebutted by showing that the accused has reached the full state of puberty even though he is below the age is 12 years. A husband cannot be guilty of rape upon his wife. But the privilege or immunity is of limited effect. If the marriage has been dissolved, or a competent court has made a separation order containing a clause that the wife be no longer bound to cohabit with her husband then the implied consent to intercourse given by the wife at marriage is hereby revoked and while the order is in force it will be rape for the husband to have intercourse with the wife without her consent. The mere fact that a wife has presented petition for divorce does not by itself revoke the implied consent to intercourse. Although a husband may not be guilty of rape upon his wife, yet if he uses force or violence to exercise his right to intercourse, he may be guilty of assault. Also, a woman cannot be guilty of committing rape upon a man because according to section 357, the offence can only be committed upon a woman or a girl. In a case where a person is incapable of committing rape, he or she may be charged with the offence by virtue of section 7 of the code for aiding, counselling or procuring the commission of the offence. The carnal knowledge must be proved. For this purpose it is not necessary to prove that the hymen was ruptured or that there has been an emission of semen. The slightest penetration of the vagina is sufficient. And although the offence of rape is complete upon penetration, it has been held that the act of sexual intercourse which follows is part of the offence itself, so that aid given after penetration makes the aider a party to the offence. CONSENT On a charge of rape, absence of consent is very important and the prosecution has to prove that the accused had carnal knowledge of a woman or girl, despite her age, without her consent. It is not an excuse that the complainant is a common prostitute; that she has consented to intercourse with the accused on other occasions; or that she is the accused person’s concubine. However, these facts may make the court reluctant to believe the complaint’s denial of consent in the instant case. Consent obtained by force or by means of threat or intimidation or fear of harm is not consent. Consent given because of exhaustion after persistent struggle and resistance would appear to be no consent as well. Usually, evidence of some struggle or resistance of the complainant may be the best proof of lack of consent but this is not always necessary. To have carnal knowledge of a sleeping woman is rape. It is also rape to have carnal knowledge of a woman by impersonating her husband. Submission by a person of weak intellect or a person who is too young to understand the nature of the act done is not consent. As to the maxim that fraud vitiates consent, it is clear that no consent is effective which is obtained by fraud relating to the nature of the act, or to some other fundamental matter. If the complainant understood the nature of the act to be done, the fact that the accused deceived her about his state of health is immaterial. ATTEMPT TO COMMIT RAPE Any person who attempts to commit the offence of rape is guilty of felony and is liable to imprisonment for 14 years with or without whipping. About the Writer: Evans Ufeli is a lawyer and the author of acclaimed novel, ‘Without Face’. He is also an Alumni member of the Writers Bureau, Manchester, a highly sought-after conference speaker with a passion for the concept of change. He lives in Victoria Island, Lagos. You can contact him via Facebook: Evans Ufeli, Email: evanylaw@yahoo.com, Twitter: @Evansufeli and Phone: 08037712353. He blogs at www.ethicsafrica4u.wordpress.com.
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This article was first published on 13th July 2015 and updated on June 3rd, 2020 at 12:29 am

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