INGREDIENTS OF RAPE

Rape has been well-established as an offence in Nigeria under the Criminal Code Act, Penal Code Act, and the Violence Against Persons (Prohibition) Act (VAPP Act), 2015. The offence of rape, haven been clearly defined in the aforementioned statutes, respectively, have given rise to the ingredients of the said offence. A joint reading of the provisions of the aforementioned statutes goes to show that under Nigerian law, there are some ingredients of the offence rape, which are essentially that there was intentional sexual penetration, however slight, of the victim; that it was done without her free and voluntary consent or where consent was obtained by force, fear, fraud or because the victim is underage or of unsound mind; and that the accused person has been positively identified as the person who did the act.

In order to adequately journey through the ingredients of rape, recourse shall be made to the case of SHAFIU YA’U V. THE STATE (2022) 18 NWLR (Pt. 1863) 601, moreso, the arguments of the counsel as well as the significant holdings and judgment of the Supreme Court in the case.

This case is an appeal against the judgment of the Court of Appeal, Kaduna Division, wherein the court below dismissed the appeal of the appellant and affirmed his conviction and sentence for offences of conspiracy, robbery and rape preferred against him under sections 97, 298 and 283 of the Penal Code Act, respectively.

The brief fact of the case giving rise to this appeal as presented by the prosecution is as follows: 

On 6th August, 2007 at about 3:am the appellant together with his co-accused persons, while armed with offensive weapons, to wit: an arrow head and a gun, jumped over the fence into PW3’s premises and attacked him while he went to ease himself. They thereafter proceeded to rob him of the following items, namely: one Nanfang motorcycle valued at N96,000.00, two sets of radio valued at N3,300, cash sum of N1500.00 and gold items belonging to PW4. They also raped the PW4 who is the wife of PW3 after threatening to rape her 9 months old baby if she refused. The PW3 testified that he was forced to lie facing the wall while the 1st accused and the appellant took turns to rape his wife and he heard her crying. Both PW3 and PW4 had no difficulty identifying the appellant and the 1st accused person as the culprits having previously known both of them in the community. The PW3 testified that he had known the 1st accused before the incident at a place where they go to buy porridge, he also knew the appellant when they go lout for hunting expeditions.

Before their arraignment, the court struck out the name of the 2nd accused person (Haruna Usman) on the ground that he was deceased, remaining the appellant as 2nd accused) person and two other accused (persons who all pleaded not guilty to the charges. To prove its case, the prosecution called a total of five witnesses and tendered 7 exhibits in evidence while the appellant testified for himself and called no other evidence. At the close of trial, the learned trial Judge acquitted and discharged all accused persons of the offence of attempted (robbery under section 299 of the Penal Code. The 1st accused and the appellant were however convicted for offences of conspiracy, robbery and rape and sentenced to 3 months, 21 years and 7 years imprisonment, respectively and additional N10,000.00 fine each for rape, while the 3rd accused I person was acquitted and discharged of all allegation, the prosecution having failed to link him to any of the offences charged.

The appellant’s appeal to the Court of Appeal was dismissed; hence, his further and final appeal to the Supreme Court vide a notice of appeal filed on 8th January, 2018 containing two issues for determination distilled from the grounds of appeal.

1. Whether the lower court was right to have held that the prosecution has proven its case satisfactorily against the appellant (distilled from ground 1)

2. Whether the lower court was right to have held that tile trial court was right in its findings on identification of the appellant despite the circumstance of the case and the contradictory evidence of the prosecution witnesses (distilled from ground 2)

Learned counsel to the appellant submitted that the prosecution failed to prove that there was penetration as no medical report was tendered to corroborate the allegation of rape against the appellant. Counsel therefore contended that the court below was wrong to have affirmed the appellant’s conviction and sentence for the offence of rape.

Where an accused denies the offence, the court is urged to look for corroborative evidence, such as medical evidence of injury to the genitalia or semen stains on the clothes. However, the Supreme Court has fundamentally settled, since before now, that corroboration is not a mandatory requirement in rape cases. It is only advisable, because it is not safe to convict on the prosecutrix’s uncorroborated evidence.

In the fair and just determination of this appeal, the Apex Court, in it’s wisdom and prudence, held that:

“For the prosecution to succeed in proving the offence of rape, it must be proved that:

(a) the accused had sexual intercourse with the woman;

(b) the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation;

(c) the woman was not the wife of the accused;

(d) the accused had the mens rea, the intention to have sexual intercourse with her without her consent; or that the accused acted recklessly not caring whether the prosecutrix consented or not;

(e) there was penetration.”

Extensively, the offence of rape is universally regarded as one of the most heinous violations of human dignity, bodily autonomy and sexual integrity. In Nigeria, it has assumed alarming dimensions, provoking public outcry, legislative reforms and judicial activism. Yet, despite its notoriety, rape remains a technically complex offence to prove, because its constitution lies not in public sentiment but in specific legal ingredients that the prosecution must establish beyond reasonable doubt.

In conclusion, the ingredients of rape under Nigerian law reveal an evolution from a narrow, gender-biased, penile-centric offence under the Criminal Code and Penal Code to a broad, gender-neutral and dignity-protecting offence under the VAPP Act. Despite statutory differences, the core of the offence remains constant: penetration without freely given consent. Only when all ingredients are understood and proved beyond reasonable doubt can the offence of rape be effectively punished and deterred.

About the Authors:

Adamu Umar Adam, the Litigation Assistant, Solace Chambers, and Naima Usman are both members of the Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. They can both be reached via 07062519698 and 08139117486, respectively.