EVIDENCE OF RAPE- SHOULD IT BE MORALLY OR LEGALLY OBSERVED?

By: Akinola Michael. A.

To start with, a preliminary point to bear in mind is that what in law is rape.
         Rape has been observed by different people in different ways. However,  pursuant to section 357 of the criminal code.
” 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 threat 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.”

Though rape as over the years been categorized into various categories namely command rape, gang rape, statutory rape, acquaintance rape,  incestuous rape, underage rape and marital rape just to mention a few, the big question is EVIDENCE OF RAPE – SHOULD IT BE MORALLY OR LEGALLY OBSERVED?

OBSERVATION ONE : EVIDENCE OF RAPE IN LEGAL PERCEPTION IS RELIED UPON ”PENETRATION OF THE VAGINA ”
             In order to establish the general criminal intent required for first – degree sexual assault, it has to be proven beyond a reasonable doubt that the accused subjected another person to sexual penetration and overcame the victim by force, threat of force, coercion, or deception.

In my observation It has been held in several legal and judicial authorities that for rape to be proved there must have been penetration of the vagina,
even if slight. With due respect to our Learned Jurists, it is my humble opinion that a modification is necessary to this important requirement. The World Health Organisation (WHO), in 2002, defined Rape as “physically-forced or otherwise coerced penetration, even
if slight, of the vulva or anus, using a penis or body parts or an object ”.

The Federal Bureau of Investigation in 2012 went a step further to include as a part of the list oral penetration, likewise, the International Criminal Court Tribunal for RWANDA described rape as
“physical invasion of a sexual nature committed on a person under circumstances which are coercive”

Ordinarily, if the acts covered by rape has been extensive and made to include penetration not only by the penis but by objects, mouth etc and not only penetration of the vagina but other body parts, the perpetrators of this act would have been charged with rape and duly convicted.

Therefore, a more inclusive and all-encompassing definition of rape should be included in our criminal code and serve as parameters to determine acts which can be classified as rape.

OBSERVATION TWO: EVIDENCE OF RAPE IN MORAL PERSPECTION IS RELIED UPON ” LEX TALIONIS”

             Morality is defined as ” the principles of right and wrong” that is what is wrong is wrong and what is right is right notwithstanding who made the action. As moral creatures, humans deserve praise for good deeds, and punishment for bad ones. Punishment may range from a slap on the wrist to death, but the punishment must fit the crime. This is known as Lex talionis, or in common Jargon, ”an eye for an eye.”

Morally, it is wrong to unlawfully have canal knowledge of anyone without or with their consent either male or female, old or young person, sane or insane person. For it is a slap in the face of morality.

Take for example, spousal rape, for decades, especially in developing countries and with particular focus on Nigeria, there has been wide held and erroneous belief that a husband cannot rape his wife. As far as I am concerned, this is a rather outdated legal position, the ridiculous assertation historically stems from the following source:

The Christian concept of ”marital debt” in 1 Corinthians 7: 3-5 says: ” Let the husband render unto his wife due benevolence and likewise also the wife unto the husband. The wife hath not power over her own body but the husband and likewise also the husband hath not power over his own body, but the wife and the Quranic injunction which says: ” if a husband calls his wife to bed and she refuses and causes him to sleep in anger, the angels will curse her till morning.

Gender rights activists such as Elizabeth Cady Stanton and Lucy Stone have consistently maintained and singled out a woman’s right to control marital intercourse. Furthermore, there is the Declaration on the Elimination of Violence Against Women in December 1993 declared by the United Nations High Commissioner on Human Rights to be examined.

Therefore, it is my humble submission that it is important to recognize that a woman, even though married, may refuse sexual intercourse with the husband for any reason or no reason at all. It will be appropriate to include spousal rape as a criminal offence, this will be in a positive light as other advanced countries specifically Eastern Europe have criminalized spousal rape.

The first point of consideration is:
* Female to Male Rape: To many, this population seems unreal or rather ridiculous, the possibility of a female sexually assaulting a male seems remote but it is not a recent phenomenon. In this scenario what would be the evidence of the victim?  Would the evidence be received or entertained in the legal perspection of rape?

The assumption that only females can be raped is due to a number of wrong or stereotypical reasons such as:
i) Men are always ready for sex or;
ii) Men cannot be victims because they are easily physically aroused.

           We must understand that the male erectile response is involuntary which is very similar to a female response; we agree that a female while being sexually assaulted may still experience involuntary arousal which is a mechanical stimulation. This position is also applicable to male.

* Gay Rape: There may be instances where a girl may be a victim of rape by another girl or woman. With the advent of sex toys such as tongue, or forced digital manipulation, it cannot be far – fetched to say lesbian rape is real.

Thus, looking at a man sodomized by another man, these acts have been left unchecked due to the social stigma and lack of service and support to the victims to be called evidence in the legal perspection of rape.

Therefore, I contended that Evidence of Rape should be morally observed to make adequate reform to the legal perspection of rape. In strict legal sense the legislature should ensure that anyone found to have abetted the commission of rape should be made guilty of the act itself. Ordinarily, if the acts covered by rape has been extensive and made to include penetration not only by the penis but by objects, mouth etc and not only penetration of the vagina but other body parts, the perpetrators of this act would have been charged with rape and duly convicted.

Conclusively, this article has been written in a bid to generate opinions and ideas from the general public whether Evidence of Rape should be morally or legally observed and new developments that should be incorporated into our laws looking at the moral perspection and the legal perspection of rape.

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