INTRODUCTION
One of the major challenges facing laws in Nigeria is not its
inexistence but rather the lack of awareness as regards its
existence. Laws exist to regulate the activities of individuals in
a certain community, society or state. According to the positivist
school of thought as propounded by John Austin, laws are obeyed
because of the fear of sanction. What happens when Mr A does not
know that a law exists to regulate his activities with Mr B? He
will definitely act as he pleases which might be contrary to the
law. Hence the purpose for which such a law is enacted might be
defeated, when the individuals the law is meant to bind do not even
know of its existence or what it tends to protect or enforce. This
is the cobweb entrapping laws like; National Health Act 2014, Army
Colour (Prohibition of use) Act,
Cybercrimes (prohibition, prevention, etc) Act, 2015 and
so on.
COMBING THE STRANDS OF SECTION 23(3) OF THE
CYBER CRIMES ACT
On the Cyber-crimes Act, I wrote an article titled “Unpopular
Cyber Crime Provision; A Slippery Ground to the Ignorant” (see
link:) sending-porographic-contents-through-computer-without-recievers-consent-is-a-crime-by-samuel-omotoso[1] where I
analyzed section 24 of the Act, pointing out the fact that sending
a grossly offensive or pornographic picture could land a person
into trouble worth N7,000,000 (Seven million naira) or three years
imprisonment or both.
This article will focus on a rather sensitive and technical
provision of the same Cyber Crime Act. The paramount question this
article seeks to address is;
What are the legal implications (if any) of having carnal
knowledge with a child less than 18 years of age?. Sex with a
person less than 18 is now common occurrence; we do not need to
carry out statistics to realize the high rate of sex between
adolescents or between adults and adolescents. Before we delve into
the depth of section 23 of the aforementioned Act, particularly sub
3 , it is expedient to put the horse before the cart by stating the
provisions of Section 23(3)(5) of the
Cybercrimes (prohibition, prevention, etc) act, 2015
“Section 23(3) states that – Any person who intentionally
proposes, grooms or solicits, through any computer system or
network, to meet a child for the purpose of:
- Engaging in sexual activities with the child;
- Engaging in sexual activities with the child where-
- Use is made of coercion, inducement, force or threats;
- Abuse is made of a recognized position of trust, authority or
influence over the child, including within the family; or
- Abuse is made of a particularly vulnerable situation of the
child, metal or physical disability or a situation of
dependence; - Recruiting, inducing, coercing, exposing, or causing a child to
participate in pornographic performances or profiting from or
otherwise exploiting a child for such purposes;
Commits an offence under this Act and shall be liable on
conviction-
- In the case of paragraphs (a) to imprisonment for a term of not
more than 10 years and or a fine of not more than N15,000,000 or
both fine and imprisonment and - In the case of paragraphs (b) and (c) of this subsection, to
imprisonment for a term of not more than 15 years or a fine of not
more than N25,000,000 or both fine and imprisonment.
(5) For the purpose of this section, the term “child” or “minor”
means a person below 18 years of age.” “Through any computer system
or network” includes but is not limited to; Mobile smart phones,
Ipad, Tablets, Laptops and so on.
For the purpose of demystifying this provision, I will explain
the provision in inverted comas in three paragraphs-
- Section 23(3)a Enunciates that when a person through any
computer system or network intentionally arranges or set up a
meeting with a person under the age of 18 (eighteen)years to have
carnal knowledge (sex of any kind) commits an offence under this
Act and shall be liable on conviction to imprisonment for a term of
not more than 10 (Ten) years and or a fine of not more than
N15,000,000 (Fifteen Million Naira) or both. - Section 23(3)b Enunciates that where a person through any
computer system or network intentionally arranges or set up a
meeting with a person under the age of 18 (eighteen) years after
obtaining his or her consent through fraud, enticement, false
promises, luring, force or threats –OR- taking advantage of a
position of trust or using any sort of influence including but not
limited to family ties, employment or any fiduciary relationship
–OR- taking advantage of the physical and mental disability of a
person under the age of 18 (eighteen)years for the purpose of
having carnal knowledge (sex of any kind) shall be liable on
conviction to imprisonment for a term of not more than 15 years or
a fine of not more than N25,000,000 or both. - Section 23(3)c Enunciates that any person who through any
computer system or network for the purpose of making profit or for
any similar purpose; induce, force, coarse a person under the age
of 18 (eighteen) years to participate in pornographic performances
shall be liable on conviction to imprisonment for a term of not
more than 15 years or a fine of not more than N25,000,000 or
both.
It is expedient to also state that the consent of the child is
this instance will not even suffice as a defence in law. This
is due to the fact that it is trite in law that a child cannot give
consent because, it is believed that a child (a person below the
age of 18 years) does not understand the import of consent. To cap
it up, it is immaterial if the offender believed the person to be
of or above the age of eighteen years. See: Section 31(3)(a)
Child’s Rights Act 2003.
A person might ask that; would it be correct to say that where a
person communicates via Mobile smart phones, Ipad, Tablets, Laptops
and so on to meet with a person under the age of 18 (eighteen)
years to have carnal knowledge (sex of any kind). Will such a
person be guilty under the provision of section 23 of the Cyber
Crimes Act? The answer is YES.
A person might also ask that; would it be correct to say that
engaging in pornographic activities via Mobile smart phones, Ipad,
Tablets, Laptops and so on with a person under the age of 18
(eighteen) years is an offence under the provision of section 23 of
the Cyber Crimes Act? The answer is YES
CONCLUSION
You probably did not know that there is a legal implication of
having a sexual relationship with a person below the age of 18
years, now you do. So when next you want to engage in “certain”
activities with anyone, you can start by asking for his/her age. A
simple question like “how old are you?” might save you from a 15
years long vacation to prison or a non-refundable fee of
N25,000,000(Twenty Five Million Naira). Remembering the popular
quote about a word been enough for the wise will be the perfect way
to end this article.
INTRODUCTION
One of the major challenges facing laws in Nigeria is not its
inexistence but rather the lack of awareness as regards its
existence. Laws exist to regulate the activities of individuals in
a certain community, society or state. According to the positivist
school of thought as propounded by John Austin, laws are obeyed
because of the fear of sanction. What happens when Mr A does not
know that a law exists to regulate his activities with Mr B? He
will definitely act as he pleases which might be contrary to the
law. Hence the purpose for which such a law is enacted might be
defeated, when the individuals the law is meant to bind do not even
know of its existence or what it tends to protect or enforce. This
is the cobweb entrapping laws like; National Health Act 2014, Army
Colour (Prohibition of use) Act,
Cybercrimes (prohibition, prevention, etc) Act, 2015 and
so on.
COMBING THE STRANDS OF SECTION 23(3) OF THE
CYBER CRIMES ACT
On the Cyber-crimes Act, I wrote an article titled “Unpopular
Cyber Crime Provision; A Slippery Ground to the Ignorant” (see
link:) sending-porographic-contents-through-computer-without-recievers-consent-is-a-crime-by-samuel-omotoso[1] where I
analyzed section 24 of the Act, pointing out the fact that sending
a grossly offensive or pornographic picture could land a person
into trouble worth N7,000,000 (Seven million naira) or three years
imprisonment or both.
This article will focus on a rather sensitive and technical
provision of the same Cyber Crime Act. The paramount question this
article seeks to address is;
What are the legal implications (if any) of having carnal
knowledge with a child less than 18 years of age?. Sex with a
person less than 18 is now common occurrence; we do not need to
carry out statistics to realize the high rate of sex between
adolescents or between adults and adolescents. Before we delve into
the depth of section 23 of the aforementioned Act, particularly sub
3 , it is expedient to put the horse before the cart by stating the
provisions of Section 23(3)(5) of the
Cybercrimes (prohibition, prevention, etc) act, 2015
“Section 23(3) states that – Any person who intentionally
proposes, grooms or solicits, through any computer system or
network, to meet a child for the purpose of:
- Engaging in sexual activities with the child;
- Engaging in sexual activities with the child where-
- Use is made of coercion, inducement, force or threats;
- Abuse is made of a recognized position of trust, authority or
influence over the child, including within the family; or
- Abuse is made of a particularly vulnerable situation of the
child, metal or physical disability or a situation of
dependence; - Recruiting, inducing, coercing, exposing, or causing a child to
participate in pornographic performances or profiting from or
otherwise exploiting a child for such purposes;
Commits an offence under this Act and shall be liable on
conviction-
- In the case of paragraphs (a) to imprisonment for a term of not
more than 10 years and or a fine of not more than N15,000,000 or
both fine and imprisonment and - In the case of paragraphs (b) and (c) of this subsection, to
imprisonment for a term of not more than 15 years or a fine of not
more than N25,000,000 or both fine and imprisonment.
(5) For the purpose of this section, the term “child” or “minor”
means a person below 18 years of age.” “Through any computer system
or network” includes but is not limited to; Mobile smart phones,
Ipad, Tablets, Laptops and so on.
For the purpose of demystifying this provision, I will explain
the provision in inverted comas in three paragraphs-
- Section 23(3)a Enunciates that when a person through any
computer system or network intentionally arranges or set up a
meeting with a person under the age of 18 (eighteen)years to have
carnal knowledge (sex of any kind) commits an offence under this
Act and shall be liable on conviction to imprisonment for a term of
not more than 10 (Ten) years and or a fine of not more than
N15,000,000 (Fifteen Million Naira) or both. - Section 23(3)b Enunciates that where a person through any
computer system or network intentionally arranges or set up a
meeting with a person under the age of 18 (eighteen) years after
obtaining his or her consent through fraud, enticement, false
promises, luring, force or threats –OR- taking advantage of a
position of trust or using any sort of influence including but not
limited to family ties, employment or any fiduciary relationship
–OR- taking advantage of the physical and mental disability of a
person under the age of 18 (eighteen)years for the purpose of
having carnal knowledge (sex of any kind) shall be liable on
conviction to imprisonment for a term of not more than 15 years or
a fine of not more than N25,000,000 or both. - Section 23(3)c Enunciates that any person who through any
computer system or network for the purpose of making profit or for
any similar purpose; induce, force, coarse a person under the age
of 18 (eighteen) years to participate in pornographic performances
shall be liable on conviction to imprisonment for a term of not
more than 15 years or a fine of not more than N25,000,000 or
both.
It is expedient to also state that the consent of the child is
this instance will not even suffice as a defence in law. This
is due to the fact that it is trite in law that a child cannot give
consent because, it is believed that a child (a person below the
age of 18 years) does not understand the import of consent. To cap
it up, it is immaterial if the offender believed the person to be
of or above the age of eighteen years. See: Section 31(3)(a)
Child’s Rights Act 2003.
A person might ask that; would it be correct to say that where a
person communicates via Mobile smart phones, Ipad, Tablets, Laptops
and so on to meet with a person under the age of 18 (eighteen)
years to have carnal knowledge (sex of any kind). Will such a
person be guilty under the provision of section 23 of the Cyber
Crimes Act? The answer is YES.
A person might also ask that; would it be correct to say that
engaging in pornographic activities via Mobile smart phones, Ipad,
Tablets, Laptops and so on with a person under the age of 18
(eighteen) years is an offence under the provision of section 23 of
the Cyber Crimes Act? The answer is YES
CONCLUSION
You probably did not know that there is a legal implication of
having a sexual relationship with a person below the age of 18
years, now you do. So when next you want to engage in “certain”
activities with anyone, you can start by asking for his/her age. A
simple question like “how old are you?” might save you from a 15
years long vacation to prison or a non-refundable fee of
N25,000,000(Twenty Five Million Naira). Remembering the popular
quote about a word been enough for the wise will be the perfect way
to end this article.