In this unit, you will be exposed to the offence of rape which is rarely reported amongst the adult and which is more often committed particularly against very young girls. This unit will examine the following sub-themes:The offence of rape very frequently occurs but is very rarely reported. This centres on the fact that very often the victims, usually female adults, protect their personality and integrity and therefore shy away from laying complaint against the accused. The offence is committed when the accused, usually a male, without the consent of the victim or through consent obtained by fraud or intimidation, has a carnal knowledge of the complainant.
At the end of this unit, you should be able to: explain what constitutes the offence of rape identify the circumstances under which it could be said that the offence of rape has been committed.
1.0 INTRODUCTION
2.0 OBJECTIVES
3.0 MAIN CONTENT
3.1 Detailed Facts
Furthermore, section 358 states that “any person who commits the offence of rape is liable to imprisonment for life, with or without canning”. In discussing the offence of rape as contained in section 357 of the Criminal Code, there are basic issues worth considering.
3.2 Capacity
Still under capacity, the question is, whether a woman is capable of being convicted for the offence of rape? The answer is that it is an impossibility having regard to the definition of rape as contained in section 357 of the Criminal Code. The definition of rape in section 357 makes no reference to a woman or girl. Apart from that biologically, only the males are equipped to achieve penetration by virtue of section 6 of the Criminal Code. But all the same, it does not mean that a woman cannot be charged as a principal offender under section 7 for aiding, counseling or procuring the commission of the offence of rape. On this issues, see the case of R. v. Ram (1893) 17 COX 609. In that case, a husband raped a maid. The wife was convicted as principal in the 2nd degree.
From the foregoing, it is clear that for the offence of rape to succeed, the accused must possess the capacity to commit it. Furthermore, another question may be whether a husband can be guilty of rape upon his wife? According to Hakins in Criminal Law, sexual intercourse by husband and wife is sanctioned by law and all other intercourse is unlawful. For our purposes, the answer is that a husband cannot be guilty of rape upon his wife because of the second limb of section 6 of the Criminal Code provided there is a valid subsisting marriage at the time of the purported commission of the offence. But if there is no such valid and subsisting marriage and they are merely living as concubines, the so called husband can be charged with the offence of rape. This is understandable since there would have been no contract or marital relationship between them.
The case of R. v. Clarke (1949) 33 Cr. APP R. 448 per the judgment of Byne, J adopts the view of Hale as to why a husband cannot be guilty of rape upon his wife. The reason is that, if the marriage has been dissolved, or if a competent court has made a separation order containing a non-cohabitation clause: that the spouse be no longer bound to cohabit with her husband, the implied consent to intercourse at marriage is revoked while the order is in force, it will be rape for the husband to have intercourse with the spouse without her consent. Also, if there is a decree absolute, then the husband can be charged with rape, as the marital link would have ceased to exist. It may be borne in mind that an undertaking by a husband (in lieu of injunction) not to assault, molest or otherwise interfere with his wife… is equivalent to an injunction and has the effect of revoking the implied consent to intercourse. See R. v. Steel (1977) Crium. LR 290.
However, the mere fact that a wife has presented a petition for divorce does not by itself revoke the implied consent to intercourse. See the case of R. v. Miller (1954) 2 282. In that case, the complainant had left the accused, her husband, and had filed a petition for divorce on the ground of adultery. The hearing started and was adjoined so that the accused might attend and give evidence. Later, the accused had intercourse with his wife against her will. He was charged with rape and assault occasioning actual bodily harm. It was held that the accused was not guilty of rape but of common assault.
Following Lynskey, J. in the Miller’s case (supra), until that valid subsisting marriage is dissolved; he cannot be convicted of rape. If there is non-cohabitation clause, the clause in effect puts the relationship into abeyance and so the husband can in this regard be convicted of rape. See R. v. Miller (Supra) and R. v. Steele (Supra).
Again, if there is a decree of nullity or what one considers to be no marriage at all, the charge of rape can be brought against him. If a man is suffering from venereal disease and inflicts it upon his wife, it does not amount to rape, but at best, it would amount to cruelty. See the case of R. v. Clarence (1888) 22 QBD 23. In that case, the accused was charged for an offence under the Pensions Act 1861, particularly under sections 20 and 47. He was alleged to have had intercourse with his wife while suffering from gonorrhea which he communicated to her. He was convicted. On a case stated for the opinion of the crown court, the conviction was quashed.
On a comparative dimension, the Californian Penal Code makes a provision for rape committed by the husband upon his wife. Equally, as far back as 1952, the Israeli Legal system was trying to propound a law of rape by husband upon his wife. The English Court lately adopts this view.
In order to find out what a woman is, Omrod J. in Cobett v. Corbett (1970) 2 All ER 33 gave certain criteria or features of a woman as follows:
- To look for the presence of chromosome factors.
- To look for the presence or absence of testes or ovaries.
- To look for the genital factor including the internal sexual organs.
- The psychological factors.
3.3 Carnal Knowledge
The Supreme Court explained what constitutes penetration in the case of Iko v. The State (2000) as follows:“In legal parlance, 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 is guilty of the offence of rape (see section 357 cc). Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina (see R. v. Marsden (1981)) and Rutherford v. Rutherford (1923), R. v. Kufi (1960).
It has however been held that even the slightest penetration will be sufficient to constitute the act of sexual intercourse. The fact that a prosecutrix, who is alleged defiled, is found to be virgointcta (i.e. a virgin) is not inconsistent with partial sexual intercourse and the court will be entitled to find that sexual intercourse has occurred if it is satisfied on the point from all the evidence led and surrounding circumstance of the case. Where penetration is proved but not of such a depth as to injure the hymen, it was held sufficient to constitute the crime of rape. Proof of the rupture of the hymen is therefore unnecessary to establish the offence of rape”.
For purpose of rape therefore, the most important ingredient is penetration and unless penetration is proved, the prosecution must fail. But penetration, however slight, is sufficient and it is not necessary to prove injury or the rupture of the hymen or that there has been an emission of semen.
It is settled law that the act of sexual intercourse which follows is part of the offence itself, so that aid given after penetrating makes the aider a party to the offence. See R. v. Mayberry (1973) QDR 211 and note as well the dissenting view of Skerman, J. at p. 161. See Okonkwo’s Criminal Law in Nigeria.
3.4 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 no excuse that the complainant is a common prostitute or that she has consented to intercourse with the accused person as a concubine. However, these facts may persuade the court not to believe the complainant’s denial of consent. Consent obtained by force or by means of threats or intimidation or fear of harm is no consent. Consent given because of exhaustion after persistence struggle or assistance would appear to be no consent. Usually evidence of some struggle or resistance by the complainant may be the best proof of lack of consent but this is not always necessary.
The law is that for one to have a carnal knowledge of a sleeping woman, one is said to have committed the offence of rape. It is also rape to have carnal knowledge of woman by impersonating her husband. Submission by a person of weak intellect or a person who is young to understand the nature of the act done is no consent. It must be stated that, no consent is effective which is obtained by fraud relating to the nature of act. See the case of R. v. Flattery (1877) 2 QBD 17.
As to the issue of consent, the prosecution need not prove a positive consent by the woman, it is sufficient if the woman did not accept. Thus the next is not, the act was against her will? But, was it without her consent? Perhaps the question to be asked is whether she did accept or did not accept.
In Tamaitirna Kaitamiki v. The Queen (1984), the accused was charged with rape. It was alleged that he broke into a woman’s flat and twice raped her. There was no dispute that sexual intercourse had taken place on two occasions but he contended that the woman consented or he honestly believed that she was consenting. On the second occasion, and after he had penetrated her he became aware that she was not consenting but he did not desist from intercourse.
In confirming the conviction by the lower courts, the Judicial Committee of the Privy Council restated that sexual intercourse was complete upon penetration and it was a continuing act only ending with withdrawal. Consequently, the appellant was liable where he continued intercourse after he realized that the woman was no longer consenting. Some people have argued that it is impossible for a woman who has not accepted or consented to be raped, since before acceptance of the penis, there must be the lubrication of the vagina. That is to say: “there could only be an absence of consent of the prosecutrix’s mind had been overborne by fear of death of duress.”
This argument however, runs counter to judicial decisions. In R. v. Olugboja (1981), the Court of Appeal (U.K) held that the offence of rape was having sexual intercourse against the woman’s consent: that the offence was not limited to cases where sexual intercourse had taken place as a result of force, fear or fraud; and that the trial judge had properly directed the jury that, although the complainant had neither screamed nor struggled and she had submitted to sexual intercourse without the defendant using force or making any threats of violence, they had to consider whether the complainant had consented to sexual intercourse.
It is argued that submission which is got by way of duress is not consent because there is a distinction between submission and consent. Not every submission is a consent, e.g. pointing a flick knife to secure submission as in R. v. Mayers (1872) (supra). Mere animalistic instinct would not be sufficient to constitute rape and a misrepresentation that is not fundamental in respect of the identity of the person e.g. saying he is a wealthy person does not violate consent so as to amount to rape (R. v. Clarence (supra)).
SELF ASSESSMENT EXERCISE
1. What are the ingredients for rape?
2. Can rape be committed if penetration is not deep enough?
3.5 The Mental Element Required for Commission of the
Offence of Rape
If the accused person believed that the woman was consenting, he would not be guilty of rape even though he had no reasonable grounds for his belief. The mental element of rape is intention to have sexual intercourse without the woman’s consent or with indifference as to whether the woman consented or not – see DPP v. Morgan (1975) 2 All ER 347 to the effect that a man cannot be convicted of rape, if he believed albeit mistakenly that the woman gave her consent, even though he had no reasonable ground for the belief.
The position of the law in DPP v. Morgan (supra) is valid and good law in Nigeria because if an accused person pleads that he believed the woman was consenting, he does not thereby bear the burden of establishing the defence of honest and reasonable mistake of facts as articulated in section 25 of the Criminal Code.
3.6 Attempted Rape
Any person, found guilty of attempted rape is liable to a term of imprisonment for 14 years with or without whipping. See section 25 of the Criminal Code. In R. v. Offiong (1936) 3 WACA 83, the accused was said to have entered a lady’s room uninvited, took off his clothes, expressed a desire to have sexual connection with her and actually caught hold of her. Upon a charge of attempted rape, the court held that these facts did not constitute the offence or attempted rape because, the facts adduced merely indicated that the accused wanted to have and made preparation to have sexual connection with the complainant. The case of Jegede v. The State (2000) may be instructive. The accused was alleged to have grabbed a school girl under 13 years and raped her in a disused school toilet. The sexual attack was alleged to have taken place on 24th May. The medical examination which took place on the 26th found evidence of tender vagina, purplish blue mucosa, staphylococcus and yeast cells. The pathologist opined that these might be due to traumatic inflammation and “forceful penetration of the genital trait”.
The accused denied the allegations and intended that the school girl was his pupil at a private tuition school and her father owed him unpaid fees which the girl too denied. Her father was not called as a witness, and worked in the same hospital as the pathologist.
The trial court convicted the accused of rape. The Court of Appeal quashed the conviction and sentence and substituted a conviction for attempted rape. Dissatisfied, the accused further appealed to the Supreme Court. The Supreme Court observed:
i. That there was no evidence of age of the prosecutrix; that her hymen was torn during the alleged rape or whether or not she was a virgin
ii. That there must first be proof of penetration
iii. That penetration of the vagina must be linked with the appellant irrespective of whether the prosecutrix was a minor or an adult. Absence of such evidence was fatal to any charge of rape. The Supreme Court also considered the conviction for attempted rape as ‘unfortunate’ adding that to constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation or the commission of the offence. See R. v. Eagleton (1855), Ozigbo v. COP (1936) and Orija v. IGP (1957).
Where the other ingredients of rape are present but the facts of penetration is lacking or cannot be proved, the accused may be convicted of attempted rape.
3.7 Evidential Corroboration in Sexual Offences
For defilement of girls under sixteen and above thirteen and idiots, see section 211 of the Criminal Code; procuration of a girl or woman for unlawful carnal knowledge or for prostitution whether in Nigeria or else where, see section 223 of the Criminal Code and procuring defilement of a woman by threat or administering drugs. See section 224 of the Criminal code.
In other sexual offences where the law has not specifically said the accused cannot be convicted upon the uncorroborated testimony of one witness, the courts are reluctant to convict upon the uncorroborated
testimony of a complainant. It is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix.
But it is an established practice in Criminal Law that though corroboration of the evidence or the prosecutrix in a rape case is not essential in law, it is in practice always looked for and it is also be practice to warn the jury (or the judge to warn himself) against the danger of acting upon her uncorroborated testimony or that it is unsafe to convict on the uncorroborated evidence of the prosecutrix. (Ibeakanma v. The Queen (1963).
The court may after paying due attention to the warning nevertheless convict the accused person if it is satisfied with the truth of her evidence. The reluctance of the courts to convict upon uncorroborated testimony of one witness is not predicated on law but on a rule of thumb or practice. But the court may after warning itself nevertheless convict on an uncorroborated evidence of a prosecution if it is satisfied of the truth of her evidence. See the cases of Summonu v. Police (1957) WRNLR 23 at 24 and R. v. Ekelagu (1960) 5 FSC 217.
The danger sought to be obviated by the requirement of corroborative evidence is that the story told by the prosecutrix may be deficient, inaccurate, suspect or incredible by reasons not applicable to other competent witnesses. All that is required is confirmation and support from some other source that is sufficient, satisfactory, credible and corroborative that the suspect witness is telling the truth in some part of her story which goes to show that the accused person committed the offence with which he is charged. Corroborative evidence merely goes to support or strengthen the assertions of the complainant.
It is not enough that the evidence tends to corroborate any part of the story told by the complainant. It must corroborate substantially her evidence. Indeed, it is trite law that evidence in corroboration must be independent testimony, direct or circumstantial, which confirms in some material particular not only that an offence has been committed but that the accused has committed it. On a charge of rape, therefore, the corroborative evidence must confirm in some material particular than i. Sexual intercourse has taken place
ii. It took place without the consent of the woman or girl, and iii. The accused person was the man who committed the crime. Lord Reading, summed up what evidence constitutes corroborative evidence this way: “Corroboration must be independent testimony, which affects the accused by connecting or tending to connect him with
the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the defendant committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within that class of offence for which corroboration is required by statute or as a matter of practice.
4.0 CONCLUSION
5.0 SUMMARY
impersonation or misrepresentation, there is not consent at all. The offence of rape is complete upon the slightest penetration of the penis into the vagina. The accused must have the capacity to commit the offence.
6.0 TUTOR-MARKED ASSIGNMENT
2. In Nigeria, the law is that the offence of rape is complete upon the slightest penetration of the penis into the vagina. What happens if a person cheers up the accused who has already achieved penetration and who is now working towards ejaculation?
3. Is there any justifiable ground why it could be said that a man cannot rape his lawful wife?
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