MY COLUMN.
TOPIC: RAPE IN BOYFRIEND/GIRLFRIEND RELATIONSHIP, RAPE IN MARRIAGE, CONSET AND MISCONCEPTION OF CONSENT BY BADMUS UTHMAN O.
INTRODUCTORY PART.
Rape is a criminal offence under the Nigerian law, which is statutorily defined, and encapsulated with it elements under section 282 (1) of the penal code, and section 357 of the criminal code.
Rape is simply defined as intentional sexual intercourse with a girl or woman without her consent. The offence of rape against a person will not stand if there is agreement, and when full consent is obtained from a girl or woman by a man or boy to have intercourse with her. And to the extent of it expressions, the two sections provide for it elements as follows ;
(1) Against her will
(2) Without her consent,
(3) With her consent but obtained by force or intimidation or by deception,
(4) With or without her consent but underage, I.e under the age of 14 or of unsound mind, and
(5) With her consent but under false representation. “A situation where he makes the woman to believe that he is her husband .
The main objective of the law is to regulate every activity of human beings in general, and to provide limitations, protections and also obligations for each aspect of human life. However, despite it struggle to capture every aspect, there are still some area where the provisions of the law is silent. Citing a case of study, the relationship which is commonly referred to as “girlfriend/boyfriend”, concubinage, and courtship are within the blind spot of the law and this eventually leaves these relationships unrecognized, uncovered, and unprotected by the law.
CAN A MAN OR BOY RAPE HIS GIRLFRIEND?, AND ALSO CAN RAPE OCCUR IN A LEGAL MARRIAGE?. EITHER CUSTOMARY OR STATUTORY MARRIAGE.
The first issue for determination is to determine whether or not there is a circumstance(s) where a boy or man can be found guilty of the offence of rape if he has carnal knowledge of his girlfriend, concubinage or courtship without her consent, by deception or by force. Despite being that they are both in a romantic relationship, whether publicly known or otherwise.
As cited and stated earlier in the fourth paragraph of this piece, the said relationships which were referred to as (boyfriend/girlfriend, concubinage or courtship) are not recognized by the law and every activity conducted under it is not guided by the law as well. By this so, a boyfriend doesn’t in anyway or manner under the authority of the existing Nigerian law(s) has any right over his girlfriend to give consent to sexual intercourse whether for once or all the time, this simply implies that any form of consent that may come to effectiveness in these relationships must always be discretional, it simply implies that the girl or woman in question must give consent willingly.
Furtherance, a girlfriend can neither be taken for granted nor could her consent be assumed or dispensed, just because of a mere fact that the girl or woman is a girlfriend or in a courtship with a boy or man.
The position of the law is clear, precise and concise as regards to this legal matter, the provision of the law is that, a charge of the offence of rape against an alleged boyfriend will sustain, and stand if he has carnal knowledge (sex) of his girlfriend “without her consent, against her will, by force or deception, and with consent but the girl in question is under-age”. Regardless of whether they are both in a mutual relationship or not.
In the case of “THE STATE V IDOWU YESUFU (1979) 1 FNLR 174.” the court held that “THE RELATIONSHIP COMMONLY REFERRED TO AS “GIRLFRIEND/BOYFRIEND” OR CONCUBINAGE OR COURTSHIP OF A WOMAN BY A MAN DOES NOT IN LAW CONFER A RIGHT ON THE MAN TO HAVE SEXUAL INTERCOURSE WITH THE WOMAN…”,.
The honourable court further stated that”…THE WOMAN (Girlfriend) CANNOT BE TAKEN FOR GRANTED NOR COULD HER CONSENT BE ASSUMED OR BE DISPENSED WITH , IF THE MAN HAS TO HAVE SEXUAL INTERCOURSE WITH HER. This further clearly stated that an offence of rape will substantiate against a boyfriend if he has sexual intercourse with his girlfriend without considering her consent or take her consent for granted.
However, as to whether or not a husband can rape his legally married wife.
Simply, any form of sexual intercourse between a husband and his wife cannot in any form constitute the offence of rape, because marriage itself is consent to sexual intercourse.
This assertion received a judicial blessing in the case of R v Miller (1954) 2 QB 282 where the court held that “THAT THE APPELLANT COULD NOT BE GUILTY OF RAPE, AS THE IMPLIED CONSENT OF A WIFE TO HAVE INTERCOURSE WITH HER HUSBAND COULD ONLY BE REVOKED BY COURT ORDER OR A BINDING SEPARATION AGREEMENT. IN THE CIRCUMSTANCES, THIS CONSENT HAD NOT BEEN REVOKED. NEVERTHELESS, A HUSBAND WAS NOT ENTITLED TO USE FORCE OR VIOLENCE FOR THE PURPOSES OF EXERCISING HIS RIGHT TO INTERCOURSE; TO DO SO WOULD AMOUNT TO AN ASSAULT.
The Honourable court has made it clear that “Use of force by a man to exercise his right to intercourse, would only amount to assault and not to rape.
MISCONCEPTION OF CONSENT, VITATION OF CONSENT AND WHEN IS CONSENT NOT VITATED.
In addition, if eventually a girlfriend doesn’t actually give consent, but the boyfriend mistaken that she consented, he would be excused FROM criminal liability. Meanwhile, the evidential liability will be solely rested on him (that he must show, and satisfactorily prove that there was actually a mistake). however, it will be very difficult to prove that there was actually misconception considering the combined effect of section 37 and 39 of the penal code. By virtue of these two sections, consent will be invalidated if it is obtained without due care and attention, and if consent is given for fear of being injured, misconception of fact, and when the girl doesn’t understand the nature of what she give consent to or by a person who is under fourteen years of age.
More so, the law has made a vivid, clear, otherwise obvious distinction between submission, and consent. Although every consent involves submission, but a mere submission is not consent because a victim might submit herself in fear of the use of force on her, or being harm as the case maybe. See also (R v. Olugboja (1982) QB 320.
Nevertheless, it is not rape, and consent is not vitated if the lady understands the nature of the act, but only expected that she would be paid, since she is aware of the nature of the act and her consent wasn’t obtained through force or intimidation but only that the man or boy refused to pay for the service rendered. Then, it is not rape. Moreso, the offence of rape cannot surface or stand if the man promise her gifts, and later renounce it. See also R v. Linekar (1995) 3 ALL ER 69.
Consequently, consent would be generally vitiated if a guy induce a girl with alcohol, or any other intoxicating substance to such an extent that the girl is unable to give informed consent. Informed consent in the sense that, the girl or woman must be aware of the nature of the act, and she must be in her right senses. See also R v. Wood (1982) 74 Cr App R 312.
Lastly, sexual intercourse between a man or boy and woman or girl engaging in a romantic relationship is a necessity, the law is not trying to regulate this mutual activity.
However, the provisions of the law is very strict about consent, because the right of the other gender must also be protected as their consent to this activity is mostly taken for granted, dispensed and obtained under undue care. Also, by virtue of the existing law, an underage girl does not have the ability to give consent to intercourse whether or not she is in a romantic relationship with a boy or man.
REFERENCES;
SECTION 282 (1) OF THE PENAL CODE.
SECTION 357 OF THE CRIMINAL CODE.
SECTION 37 AND 39 OF THE PENAL CODE.
FUNDAMENTAL PRINCIPLES OF NIGERIAN CRIMINAL LAW, BY ESA O. ONOJA.
THE STATE V IDOWU YESUFU (1979) 1 FNLR 174.
R V MILLER (1954) 2 QB 282.
R V OLUGBOJA (1982) QB 320.
R v. LINEAR (1995) 3 ALL ER 69.
R v. WOOD (1982) 74 CR APP R 312.
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