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Rape, sexual assault and other sexual offences By Evans Ufeli
Opinion

Rape, sexual assault and other sexual offences By Evans Ufeli

Mfonobong Akpan

Rape is the most serious kind of sexual assault and it is punishable with imprisonment for life with or without whipping. The offence is defined in section 357 of the criminal code 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 threat or intimidation of any kind, or by means of false and fraudulent representation or to the nature of the act, or, in the case of a married woman, by personating her her husband, is guilty of an offence called rape.

CAPACITY

According to section 30 of the criminal code a male person under the age of twelve years is presumed to be incapable of having carnal knowledge. It follows from this that he cannot be guilty of the offence of rape or attempted rape although on such a charge he may be convicted for indecent assault. The presumption is one of law and cannot be rebutted by showing that the accused has reached the full state of puberty even though he is below the age of 12 years. A husband cannot be guilty of rape upon his wife. But the privilege or immunity is of limited effect. If the marriage has been dissolved, or if a competent court has made a separation order containing a clause that the wife be no longer bound to cohabit with her husband then the implied consent to intercourse given by the wife at marriage is hereby revoked and while the order is in force it will be rape for the husband to have intercourse with the wife without her consent. The mere fact that a wife has presented petition for divorce does not by itself revoke the implied consent to intercourse. Although a husband may not be guilty of rape upon his wife, yet if he uses force or violence to exercise his right to intercourse, he may be guilty of assault or wounding. Also, a woman cannot be guilty of committing rape upon a man because according to section 357 the offence can only be committed upon a woman or a girl. In every case where a person is incapable of committing rape he or she may be charged with the offence by virtue of section 7 of the code for aiding, counselling or procuring the commission of the offence. The carnal knowledge must be proved. For this purpose it is necessary to prove that the hymen was ruptured or that there has been an emission of semen. The slightest penetration of the vagina in sufficient. But there can be rape without penetration. And although the offence of rape is complete upon penetration, it has been held that the act of sexual intercourse which follows is part of the offence itself, so that aid given after penetration makes the aider a party to the offence.

CONSENT

On a charge of rape absent of consent, it is very important that the prosecution has to prove that the accused had carnal knowledge of a woman or girl, despite her age, without her consent. It is no excuse that the complainant is a common prostitute; that she has consented to intercourse with the accused on other; or that she is the accused person’s concubine. But these fact may make the court reluctant to believe the complaint’s denial of consent in the instant case.

Consent obtained by force or by means of threat or intimidation or fear of harm is no consent. Consent given because of exhaution after persistent struggle and resistance would appear to be no consent. Usually evidence of some struggle or resistance of the complainant may be the best proof of lack of consent but this is not always necessary. To have carnal knowledge of a sleeping woman is rape. It is also rape to have carnal knowledge of a woman by personating her husband. Submission by a person of weak intellect or a person who is too young to understand the nature of the act done is not consent. As to the maxim that fraud vitiates consent it is clear that no consent is effective which is obtained by fraud relating to the nature of the act, or to some other fundamental matter. If the complainant understood the nature of the act to be done, the fact that the accused deceived her about his state of health is immaterial.

ATTEMPT TO COMMIT RAPE

Any person who attempts to commit the offence of rape is guilty of a felony and is liable to imprisonment for 14 years with or without whipping.