Sexual offences remain a deeply concerning issue in Nigeria, reflecting both legal and societal challenges in addressing the crime. Rape in particular is the most serious sexual offence and sadly, the most underreported of all serious crimes. This article explores the legal framework surrounding it in Nigeria, analysing key provisions within existing laws and their application in practice. It aims to highlight the shortcomings in the enforcement of rape laws, the barriers victims face in seeking justice, and the role cultural attitudes play in hindering effective prosecution. By critically examining these aspects, the article seeks to offer recommendations for strengthening legal protections, improving victim support systems, and fostering a more comprehensive approach to combating rape in Nigeria. Through this, it underscores the urgent need for legal reforms and greater societal accountability in addressing sexual violence.

Historically, the laws governing rape were originally to protect the male property in the female body. It is a sad truth that the victims of rape are overwhelmingly female. Rape, a heinous crime that transcends cultural and legal boundaries, is often discussed alongside other sexual offences, such as statutory rape and defilement. While these offences are equally troubling and carry distinct legal implications, our focus remains on the concept of rape itself. What truly constitutes rape in the eyes of Nigerian law? Is it solely about the violation of the body, or does the law require additional elements for an act to be considered rape? This article seeks to unpack the complexities surrounding the legal definition of rape in Nigeria, exploring how the courts interpret this crime.

Furthermore, the issue of marital rape—where a spouse is forced into sexual relations without consent—raises critical questions about the extent to which Nigerian law protects all individuals, even within the confines of marriage. In addressing these questions, this article aims to clarify the boundaries of rape under Nigerian law and challenge societal norms that often hinder justice for victims.

The offence of rape is defined in section 357 Criminal Code as ‘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 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 in the case of a married woman by personating her husband is guilty of an offence called rape.

Section 282 of the Penal Code defines rape as when a man has sexual intercourse with a woman:

• against her will;
• without her consent;
• with her consent, when her consent has been obtained by putting her in fear of death or of hurt;
• with her consent, when the man knows that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
• with or without her consent, when she is under fourteen years of age or of unsound mind

One quite interesting fact discovered after a quick look at both definitions is that they both define rape as an act committed against a woman. Now, although women are largely the victims of rape, they aren’t always. Surely these laws aren’t saying a man cannot be raped…are they? But before we delve into the shortcomings of the laws governing rape in Nigeria, let’s first break down the definitions and uncover the elements or requirements of rape.

The essential elements of rape are:

1. Carnal Knowledge- Though the word “Knowledge” is used here, this refers to the physical element of the offence of rape. It is sexual intercourse without consent.
2. Penetration- In the case of Ike v The State it was held that the slightest penetration is sufficient. It is not necessary to prove that the hymen was ruptured. However, penetration must be through the vagina and not anus.
3. Unlawful Carnal Knowledge- Not to be confused with the first element, this requirement speaks to the fact that the carnal knowledge or sexual intercourse must be unlawful. That is to say one which takes place otherwise than between husband and wife.
4. Not Consensual- This means that the there is an absence of the victim’s consent to the sexual intercourse. Consent gotten through tricks, fraud, misrepresentation, threat or intimidation is not true consent.

Under this section, we will be looking at who the law views as actually having capacity to rape. In Nigeria, certain persons are “incapable” of committing the offence of rape due to certain factors which would be discussed in detail below:

1. Gender: Earlier in this article, we pointed out how the definitions of rape suggest that it is an act done by a man to a woman. This is the law in Nigeria.  It is only a man who can be guilty of rape and penetration as an element speaks to the male genitalia inserted into the female organ.
2. Age: By virtue of section 30 Criminal Code, a boy aged 12 and below is presumed incapable of having carnal knowledge and can therefore not be charged with rape. If he, however, assists in the rape, he may be liable.
3. Marriage: Marital rape is not considered rape in Nigeria. As shocking as that may be, marriage remains an exception to the offence under our law. A husband cannot be guilty of having unlawful carnal knowledge of his own wife. If he uses force or violence during intercourse, he may be guilty of assault but not rape under Nigerian law.

Rape: New Reforms and the Current Position of the Law

The Criminal Law of Lagos State [hereinafter referred to as CLLS] and the Violence Against Persons (Prohibition) Act [hereinafter referred to as VAPP ACT] expand the definition of rape to include unlawful penetration of the vagina, anus, or mouth, not limited to vaginal intercourse. Not only this, but the CLLS recognises that both males and females can be victims and that perpetrators can be of any gender. 

Another major reform is on the issue of marital rape. The CLLS recognises marital rape, but with restrictions. A husband can only be prosecuted if there is a separation order, divorce, or an injunction against sexual intercourse. Similarly, the VAPP Act fully criminalises marital rape without requiring separation or divorce. It treats all instances of non-consensual intercourse within marriage as rape, protecting the rights of spouses to refuse sex.

The Criminal Law of Lagos State and the VAPP Act have introduced comprehensive reforms aimed at expanding the definition of rape, strengthening protections for victims, and ensuring perpetrators face appropriate penalties. These legislative advances reflect a more progressive approach to addressing sexual violence in Nigeria and underscore the importance of continued legal and societal reforms. However, the recent move by the Senate to repeal the VAPP Act has left a bitter taste in the mouths of Nigerians, and this author’s as well. It begs the question: are we as a nation moving forward, or are we regressing?

Addressing rape requires both legal action and societal change. By strengthening protections for victims and challenging harmful norms, we can move towards a society where sexual violence is not tolerated and justice is accessible to all.

Notice: This article provides general information only and is not intended as legal advice. For personalised guidance, please consult a qualified attorney. Reading this article does not establish an attorney-client relationship between EKO SOLICITORS & ADVOCATES and any member of the general public.

AUTHOR; JUSTICE OJIENOH