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Rape is a reality in all societies though in varying degrees of prevalence. Nigeria and other Africa country which are the focus of this paper are identified as high prevalence countries. From time immemorial, rape had acquired the status of an act frowned upon by society and subsequently codified as a criminal offence with duly prescribed punishments. However, especially in contemporary times, the criteria by which a given encounter is determined to be an act of rape varies from one jurisdiction to another. This work is based on the assumption that the efficacy of the criminalisation of rape as a means to control the occurrence or to protect the society is dependent upon a proper definition of the offence. Reforms in this aspect of the offence have manifested in the removal of the gender specification of accused and victim, the eradication of the marital rape exemption and an increased emphasis on consent of the victim, resulting in the removal of the force requirement as an element in some jurisdictions. This paper therefore examines and makes a comparative study of the definition of rape in both jurisdictions in line with these reforms.
Rape is no doubt a major social ill that plagues most if not all societies . It is socially and publicly condemned and criminalised with varying degrees of punishment. However, the level of effectiveness in prosecuting the offence, securing convictions and ultimately reducing the rape statistics is often dependent on the nature of the anti-rape legislation, the legal frame work for enforcement, the political will of the state and also the various socio cultural nuances of the people of that state.
In Nigeria, besides the fact that only few reported cases get prosecuted and judgement entered, poor and inaccurate statistics and data collection by relevant authorities make it very impossible to have definite figures in term of victims and thereby discouraging even the report of incidents by victims. There is a general consensus that Nigeria’s legal frame work as regards the offence of rape is due for an overhaul from the prescribing laws to mechanisms for reporting, the investigative techniques employed by law enforcement agents, and the attitude of the judicial officers.
1.2 Statement of the Problem
The ubiquitous attribute of the offence of rape and its accompanying shortcomings are not in doubt. This may account for the reason why a sizeable amount of juristic ink has gone down the drain in an attempt to do justice to its ambit over the years. To ground conviction, the law requires that penetration must be proved; that the prosecutrix must not have consented; and lastly, that her story must be ably and independently corroborated. On corroboration, the debate more often than not has always centered on whether its requirement in some sexual offences should be retained or expunged, and more importantly whether there is any legal justification for requiring it in rape cases where corroboration requirement has merely been a matter of practice. While there is no much problem in determining what amounts to penetration in law theoretically, the determination of whether there has been penetration in actual fact is not an easy task. The issue of consent is also as problematic as the issue of corroboration and the major problem here is the way and manner Nigerian courts interpret the requirement of non-consent.
Against the above backdrop, this paper considers the appropriateness or otherwise of the requirements of penetration, non-consent and corroboration in rape trials, and concludes, inter alia, that the requirement of corroboration, as it currently exists in its rigid form, is a surplusage which should be excised from Nigerian statute books; that the Nigerian courts employ double standard in the interpretation of the requirement of non-consent by expecting victims of rape to put up utmost resistance against their assailants as if they had the physical strength to so do; and that the Nigerian laws on rape are long overdue for total overhaul. To remedy these anomalies, the paper makes far-reaching recommendations aimed at filling the age-long neglected lacunae in the Nigerian laws on rape.
1.3 Objective of the Study
The Objective of this project are:
1. Examining the concept and type of rape.
2. Investigate the rape act on going in Nigeria.
3. Analyze the offence and punishment of rape under criminal jurisprudence.
1.4 Research Methodology
The methodology employed in this research project is as follows:
• Citing the relevant provisions of the law which are known under the rape offence,
• Judicial precedents
• Bringing together what other scholars have said regarding rape criminal act
• The use of illustrations for the purpose of lucidity.
Other sources of law are also the basis of the data for this research work, thus, the criminal act and panel code, law textbooks, law reports, Journal Articles on Law and various statutes and cases on the subject matter are the sources of the research.
1.5 Scope of the Study
The scope of this study is centered on the offence of rape under the criminal jurisprudence.
1.6 Literature Review
Specifically for the offence of rape, the Criminal Code applicable in the southern region of Nigeria raises a presumption that a male child under the age of twelve years (minor) is incapable of having carnal knowledge. This is without qualification to the state of maturity of the child. Conversely, the Penal Code, which applies in the northern region while making similar provisions, renders a child above seven years but below twelve years culpable for rape if it is proven that he has ―attained sufficient maturity of understanding to judge the nature and consequence of such act‖. The two codes thus, provide divergent approaches to the culpability of minors for the offence of rape in Nigeria. It appears that the real issue behind the culpability or otherwise of minors for the offence of rape is the age at which a person can be said to be criminally responsible for the purpose of punishment rather than the ability to commit the crime. This issue is much more relevant in the case of culpability for rape or unlawful carnal knowledge of a female by a male minor. What is the jurisprudence of the culpability or otherwise of male minors for rape in the two statutes? Is the physical development of the minor a factor in determining culpability? These are some of the knotty issues raised regarding the application of the provisions of the two statutes on the offence of rape by minors.
Even though in the contemplation of the Criminal Code, a male person below the age of twelve may be doli incapax (legally incapable of committing the offence of rape), it is submitted that such a person may be convicted of the offence of indecent assault and aiding and abetting rape or defilement. The punishment for these offences is far less than the punishment on conviction for unlawful carnal knowledge or rape.
1.7 Definition of Terms
It is define by section 1 Criminal Code act as liability to punishment as for an offence. It is the liability incurred as a result of an act or omission committed by an offender or an accused person.
An act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding.
This is the physical components of a crime and that generally must be coupled with means rea to establish criminal liability; a forbidden act.
The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness.
Burden of proof
This is a party’s duty to prove a disputed assertion or charge.
The act of inciting another person to do something, especially to commit crime.
Act is something done or performed, especially voluntary; a deed.
Failure to do something which law directs to be done and was not done i.e. negligent, carelessness mistake etc.
The willingness to bring about something planned or foreseen i.e. the state of being set to do something.
Jurisdiction: This can be defined as the power of a court to decide a case or issue can be exercised.