Sex between two or more consenting individuals is not looked upon with disdain by the eyes of the law, however, where there is lack of consent from any one of the participants of the sexual intercourse, the law objects.
Section 357 of the Criminal Code Act Cap C38 LFN 2004 states that as follows
“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.”
Section 358 of same tells us that rape is punishable with imprisonment for life, with or without caning.
Section 258 of the Administration of Criminal Justice Act 2015 (ACJA) defines rape as unlawful sexual intercourse with a woman or girl by a man without her consent. The lack of consent includes where consent was secured through force, impersonation, threat or intimidation of any kind, fear of harm or false or fraudulent representation as to the nature of the act.
According to subsection (4) ACJA, Sexual intercourse is complete on the slightest penetration of the Vagina. Section 259 extends this to penetration of the anus, vagina, mouth or any opening in the body with any part of the body or any object.
According to section 264, a person consents if he agrees, by choice, and has the freedom and capacity to make and communicate that choice. In determining whether consent was present the court will take into consideration all circumstances of the occurrence.
One may find the wording of this Act to be prejudicial against men as it seems to only protect women. The Violence Against Persons (Prohibitions) Act 2015 (VAPP) tries to correct this. It does not limit victimisation with respect to rape to women but casts a wide net as to what can be termed rape and who can commit rape. It states…
“(a)A person commits the offence of rape if 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; (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 or 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.”
However, the VAPP Act applies only to the Federal Capital Territory and is not binding law in a state unless adopted by that state, and several states are yet to adopt it.
Based on the above, it is established that sexual intercourse, or any form of penetration of any man or woman, by any person, without consent, constitutes rape and is punishable with life imprisonment.
The primary issue seems to be consent. It is what differentiates sexual intercourse from rape. It does not matter at what point one party withdraws consent, any sexual act that occurs beyond the confines of consent is rape, and the court will take into consideration circumstances surrounding the event to determine whether or not there was a rape. Now, the pertinent question, can a minor give consent to sexual intercourse.
Under Nigerian Law, a child, according to Section 277 (Interpretation) of the Childs Rights Act is anyone who hasn’t attained the age of 18. Now, some laws in Nigeria, prescribe the of consent or the age of a child differently, it is advised to consider the highest age prescription for obvious reasons.
Section 31 of the Childs Rights Act, Cap C50, LFN 2004 (CRA): states that no person shall have sexual intercourse with a child and whoever does so, commits an offence of rape and is liable, on conviction, to imprisonment for life. It further states in (3) of this section that it is immaterial that the offender believed the person to be of or above the age of eighteen years (16 years under the Criminal Code Act); or that the sexual intercourse was with the consent of the child.
This eliminates the condition of consent where the sexual intercourse is with a child. Sexual consent is irrelevant in the case of a child. This, however, is only the case where a participant of the intercourse with a child is an adult, and not as between people who the law terms as children. This is because, even though this is not expressly stated in law, going by the wording of the provisions, a contrary take would mean that sexual intercourse between 2 children would be each child raping the other, for which they would be both criminally liable.
From the wording of the law, a child is incapable of having consensual sex with an adult. As regards a child, or a person below the age of consent, raping any person, the law is clear on the position on rape and does not restrict this to adult, though the circumstances of the trial would differ as he or she would be tried as a child. Section 204 of the Childs Rights Act provides as follows
“No child shall be subjected to the criminal justice process or to criminal sanctions, but a child alleged to have committed an act which would constitute a criminal offence if he were an adult shall be subjected only to the child justice system and processes set out in this Act.”
By Chinenye Mbachu.
References
Childs Rights Act, Cap C50, LFN 2004 (CRA)
The Violence Against Persons (Prohibitions) Act 2015
Administration of Criminal Justice Act 2015
Criminal Code Act Cap C38 LFN 2004
