With the unfortunate alarming spate of rape incidents all around now, I decided to exploit this aspect of the rape phenomenon which happens but attracts little or no attention. Interestingly, this article was also borne out of a legal argument with some female colleagues at work. After the start of the writing, it was also the deliberate subject of a discussion among some other young lawyers in my circle. It was the opinion of the ladies that the Nigerian legal system does not protect male victims of rape; that it is unimaginable women can rape men or better still, it is unimaginable that one woman can rape one man. This opinion is rooted in the moral, male ego and male-dominated society’s viewpoints. While this position is tempting, I am swayed by Aristotle who said, “Law is reason free from passion,” to assert dispassionately that this opinion cannot withstand legal scrutiny.
A few years ago, male rape was unknown to our laws. It was even believed that men would enjoy being ‘victims’ of such an ‘offence.’ So when it happened, victims had no legal redress in court. This is because the law only contemplated females as capable of being victims of rape but not culprits of same. This is reflected in the wordings of the law providing for the offence. Section 357 of the Criminal Code defines rape in this way:
“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 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 Penal Code, which is operative in the North, in section 282(1), has a similar provision.
With the specific use of the words “woman” and “girl“, it is crystal clear that the drafters of the law did not envisage male rape or did not believe in the ability of a woman to rape a man. But that is not surprising. The Criminal Code was first enacted in 1916. It would have been unheard of at the time that a woman raped a man. However, the law may move slowly in comprehending modern realities and developments, it is not eternally fixed.
THE NEW AGE
New realities have shown that male rape is possible. Even the Nigerian legal system has shifted base in recognizing same. One of the legal exploits of Goodluck Jonathan’s presidency was bringing to a successful conclusion the 14-year-long social and legislative advocacy championed by women’s groups and gender activists (WACOL). The administration enacted the Violence Against Persons (Prohibition) Act, 2015. The Act, by its long title, is “to eliminate violence in private and public life, prohibit all forms of violence against persons, and to provide maximum protection and effective remedies for victims and punishment of offenders.” The Act which outlaws Female Genital Mutilation (section 6), emotional, verbal and psychological abuse (section 14), stalking, [YES! STALKING] (section 17), has expanded the scope of rape to cover men.
Section 1 of the Act provides that:
“A person commits the offence of rape if- (a) he or she intentionally penetrates the vagina, anus or mouth of another person with any other 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 additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.”
The Act therefore makes a novel provision for rape through oral and anal sex and the argument that Nigeria does not protect male victims of rape seemingly looks settled. Therefore, gleaning from the above provision, penetration of the anus or mouth of a man in circumstances contemplated by paragraphs (b)-(c) above will amount to rape. That is as far as that goes.
However, the provision for male rape in this Act has left a loophole for penetration. A conspicuous, dicey and vital loophole. Let me reproduce a part of that section 1 for a better understanding of this point.
“A person commits the offence of rape if- (a) he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else;…”
From the foregoing, the Act only states three (3) parts of the human body that can be penetrated to ground a conviction for rape – the vagina (female), anus and mouth (both genders). Even a cursory look shows that the major male reproductive organ, the penis, is not mentioned. This is understandable because, let us ask ourselves, how can the penis be penetrated?
But then, this understandable omission with no provision to cover for it has left a hole in the law. For instance, as a lawyer, I have listened to unbelievable arguments in Court and I know that many lawyers mostly look out for loopholes in laws in order to escape liability for their clients. Though this in one way is good for the advancement of the law but it leaves a sour taste in its mouth.
As a result, it will not be surprising if a lawyer comes to Court to represent a female accused person charged for rape and the former argues that the requisite elements to prove the offence of rape of a man do not include anything about a female ‘penetrating’ the penis. This may sound ridiculous but you only need a sound lawyer to put an absurd reasoning into an applausive argument. If upheld, it may be ludicrous to laymen who do not know that to ground conviction for an offence, you only need to prove beyond reasonable doubt the elements stated in the law that provides for the offence.
It is my candid opinion, however, that there is a way around it. This Act was enacted to cure a mischief: the mischief of no provision for male rape. As a result, in interpreting this provision, the Courts might have to employ the mischief rule of interpretation, overlook the omission of the “penis” and consider if there was actual sexual intercourse without the consent of the man. If there was, the Courts may be moved to decide that the offence has been sufficiently proved. This is my thought but we await the time the Courts will interpret this provision one way or the other to put the controversy to bed.
Nevertheless, I am afraid the provision on male rape will suffer same or even worse fate compared to female rape with few or no reportage due to fear of stigma, especially from the male ego perspective.
It is noteworthy, however, that whatever direction the interpretation of the section sways, the provision is still not of national coverage as the Act in section 47 provides that “this Act applies only to the Federal Capital Territory“. As a result, until all the States make similar law, male rape is still a foreign phenomenon nationally.
As a lawyer, if I find myself handling a rape case, professional duty requires me to dispassionately offer my service. However, as an emotional being, it is unimaginable what pushes and drives people, both men and women, to decide that the next thing to do is rape another person. No amount of intense “konji” and no level of indecency is powerful or tenable a reason enough to drive a man to plot to rape a woman or a woman to rape a man. So this is my plea, shelve your rod in its sheath. If you cannot control it, seek help from appropriate places. Do not leave a permanently damaging mark on another person. Do not ruin the future of another person!
S.O.J. Fadipe, Esq., is a young lawyer currently practicing in Benin City, Edo State.
He can be contacted via firstname.lastname@example.org or you can connect with him on Twitter and Instagram: @inspiredsunfad