​CAN A WOMAN RAPE A MAN UNDER NIGERIAN LAW?

Picture Credit: Daily Global Watch

INTRODUCTION 

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. 

OLD TESTAMENT

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.” 

Picture Credit: Daily Guide Africa

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.

THE HOLE

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

MY THOUGHT

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.

MY PLEA

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 fadipesunday@yahoo.com or you can connect with him on Twitter and Instagram: @inspiredsunfad

​FREE LEGAL SERVICE; PRO BONO OR CHARITY?

Ranking as one of the most common legal terms among non-lawyers is the word pro bono. You may be surprised that even an individual who might never have seen inside the four walls of a school but has dealings with a lawyer understands this phrase. It is not hard to see why. Pro bono service means legal service offered without a fee. So, if lay men know the meaning, don’t be amazed. Love for free things is a denominator common to all of us. Education and language are no barrier to understanding “free of charge“.

However, this same word has both been misused and misunderstood even among lawyers. So, as one in the know, I do feel an obligation to conduct a pro bono legal education and public enlightenment.

Firstly, let me disabuse your knowledge and understanding. Pro bono does not mean “completely free of charge”. Don’t be shocked! It only means as a lawyer, I won’t charge you for the fee I’m entitled to for the legal service I will render or have rendered. It only means I won’t charge you for the fee that is supposed to go into my wallet for the training and experience I have garnered both from the rigorous years of legal education and from practice. This pro bono does not cover other expenses in the process of rendering my service.

For instance, pro bono does not cover filing fees, expenses for service of Court processes, incidental fees that arise in the course of conducting your matter and other similar expenses. In actual fact, some lawyers still collect appearance fee for pro bono cases. My principal collected one recently and the best part was when he turned the money above his shoulders to the back for the junior lawyers to share. Such moments are ecstatic.

This is the logic for pro bono. There are different types of fees a lawyer charges. Professional fee, appearance fee, consultancy fee and others. When litigation is concerned, professional fee is the fee for what the lawyer does in his law office in preparation for your case and what he does inside the courtroom in order to win it. And this is what he was trained for. So, if a case is pro bono, it is this professional fee that is affected and not any other. 

However, as some of us believe, due to exposure, the challenges bedevilling the legal profession are not due to the nature of the profession but individual differences, unlike what we have been made to believe. For instance, regarding the lingering issue of poor welfare package for lawyers, especially young lawyers, we have been made to believe this is the way and modus operandi of the profession. However, it is noteworthy that some lawyers still see it as a duty that they have good welfare packages for their lawyer-employees not because they are excessively rich but because they know that is the right and proper thing to do.

In the same vein, some lawyers may still conduct your case pro bono without collecting a dime in any form. Then, this is no longer pro bono but charity (lol). All the pillars of life encourage this. The solemn bank accounts of some lawyers don’t encourage it.

So, when next a lawyer tells you he is not going to charge you for his services, verify by asking, “Barista, eskis sah, shey na pro bono or charity?” So you won’t cry foul later: “lawyers are liars.” Well, that’s already a mantra for those who cannot sit with us #picksrace

 S.O.J. Fadipe,

A young lawyer currently practicing in Benin City, Edo State.
You can connect with him via Twitter and Instagram: @inspiredsunfad and fadipesunday@yahoo.com

CAN YOU BE A NECROPHILIAC AND GO SCOT FREE IN NIGERIA?

After seeing the topic of this article, I expect one of three things from you: either consult your dictionary if you have one handy like I do always; or click the link of the article hoping to learn a new word today like I always try to do; or finally, if you do not belong to any of the foregoing categories, click the link because you wish to know the position of the law regarding necrophilia
Whichever is your lot, welcome on board because some days ago, I fell in all of the categories when I first saw the word on a video uploaded by Pulse TV on social media. I consulted my dictionaries to learn a new word and then set out on a voyage of worthwhile discovery to know the position of the law on something as disgusting, yet real as this. The outcome of my discovery is this article you are reading. 

Firstly, necrophilia is a pathological attraction to dead bodies, especially sexual attraction or intercourse. Another dictionary of mine defines it as sexual interest in dead bodies. Now, you may wonder what my fascination is with the word that spurred an article. It’s simple. The video of the Ghanaian morgue attendant who confessed to such debased act ended with the question: “is there any law against this shameful act?” As a lawyer, that whetted my legal appetite and spurred my interest in researching on the subject, as Lord Denning, the Master of Rolls said, “God forbid that a lawyer knows all the law, but a good lawyer is one who knows where to find the law.”

However, before we go on, it is pertinent to ask, who in their right senses sleep with or have sexual interest in dead bodies? If you say it may be for ritual purposes, I won’t dispute. Our society is yet to be fully divorced from crude practices. But if it is not for such, then the most reasonable explanation for people who do such is this: “aye n se won”, with the cannot-do-justice-to-the-real-meaning interpretation of “they are under a spell.” 

It didn’t take me much time to find out that apart from the fact that necrophilia might be a pathological disorder or might have a spiritual connotation, it is a crime and it is outlawed by the Criminal Code Act of Nigeria which applies only in the Southern part of the country. Sadly, there is no equivalent provision in the Penal Code, the operative legislation in the North. Section 242(1) (b) of the Criminal Code provides as follows:

Any person who without lawful justification or excuse, the proof of which lies on him, improperly or indecently interferes with, or offers any indignity to any dead human body or human remains, whether buried or not is guilty of a misdemeanor and is liable to imprisonment for two years.”

A cursory look at this provision shows that sleeping with dead bodies is not the only act contemplated by this provision of the law. In actual fact, it is the opinion of a colleague that the legislators may not even have contemplated “sleeping with dead bodies” due to the paucity of specificity in this provision. For instance, a comparative look at the provision for the offence of rape shows otherwise. Section 357 of the same Act provides that: 

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” (emphasis mine).

This provision on rape is explicit and specific, especially with the highlighted words above as touching having “unlawful carnal knowledge of a woman or girl.” However, it is not unsafe to interpret, it violates no interpretation rule and it is obviously right that “improper or indecent interference or offering of any indignity” referred to in section 242(1) (b) of the Act covers the subject of this article. In actual fact, Black’s Law Dictionary, Tenth Edition, defines “indecency” as the quality, state, or condition of being outrageously offensive, especially in a vulgar or sexual way.

Away from that, I have two grouses against this provision. Firstly, the statement, “without lawful justification or excuse”, means that the drafters of the legislation might have envisaged a situation where a necrophiliac would have a lawful excuse for engaging in such act. The question is, which lawful justification would a human have for sleeping with dead bodies? I’m yet to come up with one. Though in another way round, a lawful justification for improper or indecent interference or offer of any indignity to any dead human body might be in the form of a pathologist performing autopsy, but definitely not sleeping with a dead body.

Secondly, the punishment of two years seems like a slap on the wrist for offenders. Imagine mourning the death of a loved one and some debased humans somewhere are sexually feasting on the body. Two years is definitely not commensurate with this inconceivable and unimaginable act but I am far from surprised. The same Criminal Code Act prescribes the ludicrous punishment of N100 for some offences, yet we still have lawmakers in the hallowed chambers.

Definitely, morgue attendants would be much more prone to such an ungodly and unhuman act, but it is better to seek help or flee, like the Bible commands, than be a necrophiliac and even a proud one like the Ghanaian morgue attendant. What can be worse than sexual intercourse with a dead body?

If you sleep with dead bodies, you are toying with two years behind bars. But wait, who would even arrest and prosecute you? Everybody would think you dine with the devil himself.

S.O.J. Fadipe, Esq. 

Fadipe is a young lawyer currently practicing in Benin City, Edo State.

You can connect with him via Twitter and Instagram: @inspiredsunfad; and fadipesunday@yahoo.com or sunfadesq@gmail.com