Marital or spousal rape: What the law says about it

BY STANLEY ALIEKE

There have been numerous cases where women have accused their husbands of having sexual intercourse with them without their consent; and consent is the main ingredient that determines if the act of rape have taken place.

Some women go as far as taking up the case to court to get judgement but it’s pathetic that they end up losing the case even when they provide evidence and witnesses to prove that their spouse had sex with them without their consent.

They lose the case for the single reason that the act of marital rape or as it is otherwise called spousal rape is not a crime in Nigeria “yet” i.e a man who is legally married to a woman cannot be held to have raped his wife despite the fact that the man penetrated the woman by force or by threat.

The reason that the concept of marital or spousal rape is not a crime and is yet to be made a crime in Nigeria can only be traced to the cultural connotations of the Nigerian nation.

Rape is defined by section 357 of the criminal code act thus: “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 6 of the criminal code act for the sake of clarity defines what the phrase “carnal knowledge” means as stated in section 357 of the act and it defines it to mean “carnal connection which takes place otherwise than between husband and wife”.

This statutory definition simply implies that when there’s a sexual intercourse between and a man and a woman and it happened without the woman’s consent, it can only be classified as rape when the woman is not married to the man but if they are married, the offense of rape cannot be said to have been committed by the man.

The penal code act as applicable in the northern part of Nigeria further collaborates the criminal code act of the southern Nigeria in stating categorically that a man who is married to a woman cannot be held to have committed the crime of raping the wife no matter under which circumstances he had sex with the woman.

The section 282(2) of the penal code act provides thus: “Sexual intercourse by a man with his wife is not rape, save and except the wife have not attained the age of puberty”. This is to say that a man can only be held to have raped his wife according to the penal code only if the wife have not attained the age of puberty but if the wife is of the age of puberty he won’t be held to have committed the offense of rape against the wife.

Therefore, as it stands today, a wife who is legally married to a man cannot claim that her husband raped her no matter the circumstances under which the husband had sex with her and as it is the law that an individual cannot be punished for an offense which is not provided for in any Nigerian law as of the time being despite how moral justifiable punishing the offender can be. This is the provision of section 36(12) of the 1999 constitution of the federal republic of Nigeria and it states thus: “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”.

To this effect, since the offense of spousal or marital rape is yet to provided in any law in Nigeria, a man cannot be convicted for the offense of raping his wife as the offense of spousal or marital rape is “yet” to be criminalised.

We sincerely hope that spousal or marital rape gets criminalised in Nigeria as soon as possible so that men who force themselves on their wives get to be severely punished and the women get succor from the traumatising experience.

Alieke (Esq.) is a managing partner, at Stanley Alieke & Co. He can be reached via [email protected]