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Marital rape – You can’t say no, you already said yes!

‘Is there any such thing as marital rape?’ you may ask. Well, a man will not ordinarily rape his wife. However, a lot of ‘marital rape’ starts off as an abuse – physical abuse, mental abuse, emotional abuse… Whilst the law does not conceive the possibility of a man raping his wife, there is a view that same is unconstitutional and is outside of social norms. The question now is, ‘Will the Courts be willing to abrogate the provisions of the Penal Code, Criminal Code and Criminal Code Laws of the various states in light of social norms?
CAN A MAN RAPE HIS WIFE?: A review of the legal elements
On first review of this topic, it appears that the answer is simple and clear cut.  A lay man would tackle this question in that way.  However, if rape is the forceful knowledge of another without consent, then of course any “man”, even a husband, can rape his wife.  To add credence to this assertion, a review of the Merriam Webster online dictionary defined rape as:
“Unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception.”
The major element here seems to be ‘consent or will’ when dealing with sexual intercourse.  Therefore, it would naturally flow that a man can rape his wife.  This is however not the legal position in Nigeria.  Rape, being a criminal offence is provided for in our country’s codified law.
S. 282 of the Northern Nigeria Penal Code and S. 357 and S. 358 of the Criminal Code as well as the Criminal Laws of Lagos State (CLL) defines rape as:
Sexual intercourse with a woman or girl, without her consent, or incorrectly obtained consent.”
Again, the major element seems to be ‘consent or will.’ Consent can be incorrectly obtained where it is obtained:
  • by force/threat/intimidation
  • by means of false and fraudulent representation as to the nature of the act,
  • by a person impersonating a married woman’s husband in order to have sex
Under the Criminal Code, sexual intercourse with under-aged girls or people with unsound mind is known as the offence of defilement, and so technically, a person could be charged for rape and defilement.  Furthermore, under the Penal Code, where a man has sex with a girl under 14 years of age or a mentally unsound female, it is rape irrespective of whether there is consent.
This brief review must be in tandem with our earlier definitions though it is worth mentioning here that by the wording of these laws, it presupposes that a man cannot be raped. This latter issue will however be left for another paper.
The Penal code and Criminal code go further in their definition of rape to categorically state that “a man cannot rape his wife.”
Most marital rape rises from marital violence and is an element of systematic abuse of the partner, usually, but not solely the wife.   Some laws such as the Nigerian Criminal and penal code which dae back to the mid 1900’s still maintain the traditional view of marriage that a woman is subjected to her husband to the point of being a possession.  The legal rationale is that a woman has given implied consent to her husband and thus cannot rape her.  This element of implied consent derives from the common law principle established in the case of R V Shaw.
This principle of women as property goes back to the 20th century before the second wave of feminism where women were seen as chattel. Women by a principle known as coverture were subsumed by marriage, therefore all property owned by the wife became property of the husband on marriage.  In fact, the law then saw rape as a crime or tort of theft of a man’s property; the woman being the property of either the father or the husband. Therefore, a man could not be prosecuted for raping his own wife because she was his possession.  In fact, in that light, the victim of the rape was not the receiver of the abuse but the husband.  Therefore, how could the man be said to have raped his wife.  In fact, today in Nigeria, amongst most statutory rapes involving incest, the father is heard to be saying that it is his daughter and so he cannot rape her, maintaining that same mindset of her being a property belonging to him.  The view that a husband cannot be charged with the rape of his wife was described by Sir Matthew Hale where he wrote that “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” The rationale behind this implied consent suggests that the woman is subsumed by her husband and therefore since a man cannot be seen to be raping himself, a man cannot rape his wife. In other words, the belief is that that the identity of the woman disappears upon marriage; she becomes a new creation, i.e. her husband and her old self disappears. It thus boggles the mind why ladies chose to marry in the 20th century and it also brings to mind fundamental human rights ascribable to every human. One of such questions that comes to mind is that if a female cannot be raped by her husband because she has consented to being subsumed into him, then does she exist to have human rights of dignity?
Before exploring our human rights, it is important to first explore the Criminal and Penal code and its applicability.  As much as the exemption of marital rape seems to exist, same can be limited. The assertion that a married man cannot rape his wife is wrong. By virtue of the Criminal code referring to marriage, it should be noted that marriage would refer to marriage under the Act and not customary or other types of marriages carried out outside the Act.  A man can thus rape his girlfriend, concubine and wife under customary law but not his wife under the Act. The effect of this is that the colloquial presentation that ‘a man cannot rape his wife’ is wrong if the wife was not married under the Act.  A live-in lover or a woman married under the native law and custom can be raped.  In fact, there were several cases in the UK just before the abolishment of implied consent that further limited the ability of a man to rape his wife.
In the notable cases below, it was argued that the case of implied consent as presented by Hale would be lifted by various measures such as a court order of non-habitation (R v. Clarke) and separation. In R v. O’ Brien, the Court held that consent lifted by obtaining of Decree nisi would also obliterate the element of implied consent held by a husband.  In R v. Roberts, the obtaining of a formal separation agreement was held by the Court as sufficient to erode implied consent in marital rape.
In addition, in Nigeria unlawful sexual intercourse in rape is limited to actual sexual intercourse and so cannot be used by the husband to justify other types of sexual contact for which he would be under no exemption.
The aim of the Courts in the cases earlier cited was to get round the element of implied consent but they also show that marriage under the Act may be paused or the implied consent originally obtained may be arrested by legal interference as have been noted above. Whilst these cases are not directly applicable here in Nigeria, they will hold strong legal sway if it came before a superior court. The effect would then be to further limit the statement that ‘a man cannot rape his wife’ to ‘a man cannot rape his legal wife’ insofar as there has been no agreement or court order or process to remove implied consent.
In the UK , the Supreme court abolished the principle of implied consent as never being a part of English law or principles in the case of R v. R, which was also the first occasion where the marital rights exemption had been brought on appeal as far as the House of Lords.  It is interesting to note that marital rape has not truly been tested by the Nigeria courts and as such is only subject to interpretations; and as happened in the UK may face objection at the superior court especially in the face of human right legislation and our constitution.  The leading judgment in R v. R followed the trio of marital rape cases reviewed briefly above and the Court’s decision was unanimous against the existence of this “implied consent”.  Lord Keith of Kinkel who gave the lead judgment stated as follows:
“the contortions being performed in the lower courts in order to avoid applying the marital rights exemption were indicative of the absurdity of the rule”.  They held that  implied consent as a principle in marital rape is a “common law fiction” and  “the fiction of implied consent has no useful purpose to serve today in the law of rape”. 
As such R’s appeal was dismissed and he was subsequently convicted of the rape of his wife.
The effect of this was a full reversal of a common law principle and the deletion of implied consent.  Whilst its applicability to Nigeria is not direct, it shows the effect that a full challenge of such absurd laws can have on superior courts.  Furthermore, a review of our fundamental human rights show that numerous elements do not stand in tandem with allowing a man to rape his wife as permitted in the criminal and penal codes.
Now it is important to review our country’s fundamental human rights as enshrined in the Constitution with specific reference to S. 42. Whilst there are several human rights that could be explored to drive home the argument to be posited, this one is most effective.
It is this section that contains every Nigerian’s inalienable right to be treated with dignity and equality, the right to freedom from discrimination no matter your age, SEX, ethnicity or religion.  It is the cornerstone of Nigeria’s human rights.  Reading it raises mantras of the Universal Declaration of Human Rights of 1948 coming after the chaos and calamity of the 2nd world war where all countries came together in a bid to ensure that the depravity and evil that had been perpetuated over the last few years would not re-occur.  Men stood in solidarity to state in S. 1 of that charter that:
“all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’’
 “All human beings, whether wife or female child are all equal.”
This is also similar to what was written in the Banjul Charter reflecting Africa’s human rights in section 1:
 “every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.’’
  1. 42 of the Constitution of the Federal Republic states specifically as below:
“(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic
groups, places of origin, sex, religions or political opinions.”
Immediately, a challenge is then placed on the various sections of our law dealing with Rape that suggest that ONLY a woman can be raped and only a husband is exempt.  Should the law be only applicable to one sex? Should the law prevent ONLY females from being able to say NO to sex within marriage?  By virtue of that law and implied consent, she cannot even exercise her human freedom to religion or worship in S.38 of the Constitution where some desist from sex whilst fasting.  She cannot say she is sick; she cannot be worried a cheating husband has been infected but is constrained to be raped.
In the in the case of Onwo v. Oko, the Court of Appeal held that S. 42 can be enforced against an individual and not just the state.  In fact, in the locus classicus case of Augustine Nwafor Mojekwu v. Caroline Mgbafor Mojekwu, under the Olu Ekpe custom of Anambra State, only male children can inherit their father’s property. When a man dies leaving no male child behind, his brother inherits his property and if this brother dies, his own male child inherits the property. The Court of Appeal condemned the practice as repugnant to natural justice, equity and good conscience.  This section prevented a law that was biased against one sex and affecting social conscience from being upheld.
The Constitution being supreme to all other laws will not uphold a law that is contradictory to it.  As all other laws derive their power from the Constitution, a contradiction will be decided in favor of the Constitution –  S.1(1). It provides thus: “This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal republic of Nigeria”
Whilst some may maintain the view that a man can rape his wife, same has not truly been tested up to superior courts to see if it can stand being sexist and against social justice.  I take you back quickly to the aftermath of the case of R v. R in the UK to conclude.
A major effect to note is that upon removal of the consent from the law, same was applied retrospectively to hold the husband in R V R guilty of the rape of his wife.  The perpetrator of the rape then approached the European Court of Human Rights arguing against the retrospective nature of their convictions.  They argued that at the time the offence was committed there had been an exemption of all husbands from rape.  They argued this was a breach of Article 7 of the European Convention on Human Rights (of which in Nigeria has a similar provision in the African Convention on human rights).  The Court however rejected their claim on the basis that criminalization of rape was reasonably foreseeable ‘in light of the evolution of social norms’.
Thus, as much as a man may want to argue that the law has his back with regards to marital rape, a serious consideration of its history and evolution would lead to the more cogent conclusion that whilst certain statutes state that a man can rape his wife, these laws are incongruent with the constitution and the effect of these findings can be made retrospective.
As it stands, we have found that the only reasons why marital rape has not been brought before the courts for consideration is that many have found respite in the provisions dealing with sexual assault and more recently in the provisions of the Violence Against Persons (Prohibition) Act, 2015 which seeks to expand the scope of rape but more importantly is the fact that the traditional view that rape cannot occur within marriage is still believed by many in Nigeria. It is pertinent for such a stand to be revisited and such views should be questioned in light of the current realities.
References:
  1. The Constitution of the Federal Republic of Nigeria, 1999 ( as amended)
  2. Penal Code Law, 1959 of the Northern States
  3. Criminal Code Act, Cap C8, LFN 2004
  4. Criminal Law of Lagos State, Cap C_, Laws of Lagos State, 2015
  5. Violence Against Persons (Prohibition) Act, 2015
  6. Loveland: Constitutional Law, Administrative Law and Human Rights 8e: Online Casebook, Oxford University Press, 2012 <https://oup-arc.com/static/5c0e79ef50eddf00160f35ad/casebook_29.htm>
  7. Olanrewaju Olamide, ‘Supremacy of the Constitution’ <https://djetlawyer.com/supremacy-of-the-constitution/>
  8. Tomiwa Olasiyan, ‘The provisions of section 42 of the 1999 constitution of the F.R.N. as amended’ <https://tomiwaolasiyan.wordpress.com/2013/08/02/examine-the-provisions-of-section-42-of-the-1999-constitution-of-the-f-r-n-as-amended/>
  9. 2016 UN Women ‘Global Database on Violence against Women’ http://evaw-global-database.unwomen.org/en/countries/africa/nigeria/1990/section-357-of-the-criminal-code-and-section-282-of-the-penal-code
[1] Oyinkan Alakija, LLB (CANTAB), BL, MBA (Imperial College) and Principal Partner, Gresyndale Legal
[2] <https://www.merriam-webster.com/dictionary/rape>
[3] Cap. P3, LFN, 2004
[4] Cap. C38, LFN, 2004
[5] Laws of Lagos State, 2015
[6] [1995] QCA 45
[7] https://en.wikipedia.org/wiki/Marital_rape
[8] ibid
[9] (1609–1676) in History of the Pleas of the Crown, published posthumously in 1736
[10] [1949] 2 All ER 448
[11] [1974] 3 All ER 663
[12] [1986] Crim LR 188
[13] [1991] 4 All ER 481
[14] The Constitution of the Federal Republic of Nigeria, 1999 (as amended)
[15] (1996) 6 NWLR 584
[16] (1997) 7 NWLR 288

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