Baby S aged 2 years was playing in her compound, while her mother cooked in the communual kitchen in their rented tenement house.After a while when she did not see her daughter she looked for her and found her crying in an uncompleted building nearby.On close examination Baby S was found to be bleeding from her vagina.Who did it? An adult male neighbour who claims to be a pastor.

In Charge no MEV/489C/2005 COP V Moses Omini, 12 year old girl had been serially defiled by he father since the age of 5 years.Her father was charged to court for rape, was found guilty and sentenced to seven years imprisonment with hard labour.

The above cases are true stories which were handled by our Women’s Rights Watch Legal Aid Clinic. All over Nigeria, we are hearing horrific stories of rape , defilement and gang rape. Only recently the first lady of Niger State drew the attention of the National Assembly on the high incidence of rape in her state.

What is rape?

Rape is a crime under Nigerian Law and is defined as forcible unlawful sexual intercourse, without a women’s consent. Section 357 of the Criminal Code states:

‘Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if consent is obtained by force or by means of threat or intimidation of any kind, or by fear of harm, or by any 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 called rape’.

The punishment for rape under section 358 is life imprisonment. As you can see, rape is a crime which Nigeria takes very seriously. Rape is an extreme form of violence against women because it dehumanizes, degrades, traumatizes and even kills. The United Nations regards rape committed during wartime as crimes against humanity. From the definition of the crime, there are many elements or situations that constitute rape.

(1) First there must be unlawful carnal knowledge. You may ask, what is the legal definition of unlawful carnal knowledge? The criminal code defines carnal knowledge in section 6 thus:

‘When the term ‘carnal knowledge’ is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration’.

The same section 6 further defines ‘unlawful carnal knowledge’ as carnal connection which takes place otherwise than between husband and wife’. Therefore under Nigerian law a husband cannot rape his wife.

There is also a similar crime called defilement which is defined under section 218 of the Criminal Code thus:

‘Any person who has unlawful canal knowledge of a girl under the age of 13 years is guilty of a felony and is liable to imprisonment for life.

As you may be aware, crimes are offences against the state and are prosecuted by the state through the police and the Ministry of Justice. The victim is the complainant who reports the case to the authorities and gives evidence against the accused in court. Proof of penetration by the Prosecutor, establishes the offence of rape.

(2) Another important element to prove is consent. Did the victim consent to the sexual intercourse? The duty of the prosecution and the complainant therefore is to prove to the court that she did not consent to the rape. Of course the accused person and his lawyer will struggle strenuously to prove to the court that there was no rape. First, by demolishing any evidence of carnal knowledge. If however the prosecution is able to prove that there was carnal knowledge, then the Defence will try to prove that the victim consented to the sexual intercourse.

A careful reading of the definition of rape in our law shows that consent may be

‘obtained by force, threat or intimidation, fear of harm or by false and fraudulent misrepresentation’.

Under our legal system, a case is proved by evidence led. This evidence must be believable, credible and consistent. Under our criminal justice system, the prosecution must prove its case beyond all reasonable doubt. Once doubt is established in the mind of the judge, the case will fail. Our system is what we call the adversarial system. The defense’s duty therefore, is to create a doubt in the mind of the judge.

As a former Public Prosecutor in the then Bendel State Ministry of Justice(1983-1988), I can assure you that the offence of Rape is one of the most difficult crimes to prove in court and the accused persons usually goes Scot free. Why?

Let us first look at the offence. Forcible intercourse is not what is usually done in the public glare. There are usually no eyewitnesses to the crime. It is usually the complainant’s words against the accused person’s. To therefore secure a conviction, the prosecution dependS heavily on circumstantial evidence to support the evidence of the victim.

Another challenge is poor police investigation. A case is usually won or lost depending on the quality of police investigation. When a rape incident is reported to the police, the investigating officer is expected to rush the victim to the hospital immediately. There the doctor would examine, treat and record the medical condition of the victim. If force was used it would be obvious on the body of the victim. If there was penetration and ejaculation, the Medical Doctor would be able to extract the rapist’s bodily fluids for forensic analysis. Medical evidence is crucial in supporting the victim’s testimony.

Unfortunately in Nigeria, rape investigation is very shoddy. There was a case I handled where the police did not conduct medical examination until 10 days after! Obviously the doctor could not make any worthwhile examination or conclusions. There was however another rape case I did where the doctor was able to identify a similar strain of STD(sexually transmitted disease) on both the victim and the accused.

My wish is that our medical and forensic examinations here in Nigeria, advance to what obtains in the West, were minutest clues are able to identify suspects and link them to the crime. Our forensic labs must begin to use DNA to conclusively link accused persons with crimes.

Another challenge faced in rape investigations is the dearth of female police officers. Male police officers from my experience are not sufficiently sensitive to the plight of victims. A rape victim is psychologically traumatized and may not even be coherent when making her complaint. My experience is that the male desk sergeants are usually unsympathetic and they treat the victims as if they asked for it. Even when they are sympathetic, how many females can discuss such a traumatic and dehumanizing experience with another man? The details are too intimate. I once did a defilement case where the Investigating Police Officer was female, the police prosecutor was female, I was there holding a brief on behalf of the complainant and the Magistrate was female. What do you expect, everything about the case was well executed and I am happy to announce that the Accused is serving a 7-year jail term in Oko Prisons Benin City.

Another challenge faced by victims is during trial, when the Defence Counsel will do everything in his power to discredit the complainant. They would try to show that she has loose morals or that she seduced him or encouraged him one way or the other. The Defence Counsel and the Accused would usually intimidate the victim, who usually when she sees the accused, is still afraid of him and would begin to relive the experience all over again.

In compliance with the provisions of Section 358, penetration has to be proved. How do you do that? By leading evidence to show that intercourse took place. This is usually very explicit and most victims are very embarrassed giving such evidence in court. However if it is not explicit, the court will hold that penetration was not proved by the prosecution. It is therefore not enough for the victim to say ‘he used me’, or he had sex with me’. It must be explicit.

There is now a growing incidence of gang rape, which was previously not too common in Nigeria. Since 2001 our organization releases a yearly report on recorded instances of violation of women’s rights. Rape is real and we owe it to ourselves to do everything possible to prevent it. We have published the 2006 Reports on the state of Women’s Rights in Nigeria on our website at www.rufarm.kabissa.org and at pages 86, 89, 94, 95, 96-98 you can read about cases of rape that occurred in 2006.

Our research has shown that rape, defilement and gang rape are on the increase most especially in urban areas. It is therefore better for us all to be proactive and security conscious because as they say ‘prevention is better than cure’.

Rape often occurs in lonely places, in the dark or sometimes in the home. It is therefore important that we do not expose ourselves unnecessary to risk. In a case I handled, a victim was gang raped when she was walking alone at 11pm on the Lagos-Ugbowo expressway. The men, who were on a motorbike, simply pulled her to the nearby bushes. Can you imagine! I consider her action a huge risky behaviour, though no one ever bargains or deserve such a tragic outcome! Rape or gang rape can also occur at parties where your drinks may be spiked without you knowing. Always be on the alert, don’t ever leave your drinks unattended to and make sure bottles are opened in your presence. Another source of risk are commercial motorbike riders. I know of two cases where girls were raped by Okada riders who picked them up from the motor parks. The girls were travelers and did not really know their way around. The riders took them to their den and gang raped them there. I was in two separate police stations here in Benin City when the reports were made. Gang rape is also common during armed robbery attacks. Well in this case there is nothing we really can do to prevent this except hope and pray that we are never victims of armed robbery, or if we are, that it never occurs to the robbers to commit rape.

My dear women and girls of Nigeria, you are our future leaders and mothers of the nation. You owe it to yourselves to be security conscious in order to keep your lives healthy, safe and happy. Nigerian men should know that rape is a crime against humanity because the victim is traumatized and scarred for life. Women are mothers of the nation, partners in development, your mothers, sisters daughters friends.Say NO to violence against women.

Nogi Imoukhuede

Chairperson

RUFARM