By J. T. Ayua & I. I. Olagunju
Introduction
The issue of sexual violence against women and children has
lingered for ages. This menace has become a can of worms in
society, bedevilling the precious and rare gift of nature,
the woman. In late May, 2020 in Nigeria, Vera Uwaila, an
undergraduate, 22, of the University of Benin, was brutally raped
and killed in a church building. In less than a week, a sixteen
year old was gang raped and killed in Ibadan, Oyo state. In the
first week of June, the same year, a thirteen year old was gang
raped and left half dead by four men in Kaduna, Nigeria. These are
but a few of many unknown cases of rape. Statistics has it that 1
out of every 4 girls is sexually molested. The issue of rape is a
recurring sensitive issue cutting across various jurisdictions and
generations. There are different perspectives and points of view on
this issue with each a culminating from a variety of factors. In
this article, the authors, aspirants to the Nigerian Bar attempt to
evaluate the causes of rape of women, from the historical,
sociological, psychological, moral, spiritual and legal
perspectives, as well as proffer solutions. The two authors are of
the opposite sexes, in order to balance the probable gender
sentiments towards the issue of rape.
Rape is defined as the act of forcing sexual intercourse upon
another person without their consent or against their will;
originally coitus forced by a man on a woman, but now any sex act
forced by any person upon another person. See also sections 357
Criminal Code Act and 282 Penal Code for the definition of rape in
Nigeria.
History of Rape
Rape dates back to antiquity. Robert Kawashima, who teaches
Biblical law at the University of Florida, referenced the ancient
near east, including Israel, as having an improper notion of
‘forcible rape’–just adultery with another man’s wife or
fornication with another man’s virgin daughter. The other man, in
either case, was the victim of the crime. In Babylonia, if a woman
who was set to be married was raped and she was a virgin, the
rapist would be killed. But if the woman was married, she would be
killed, too. In Assyria, the father of a rape victim was allowed to
rape the rapist’s wife as punishment. In Israel, if a woman was
raped within the city, she would be killed with the man. If outside
the city, she would be forced to marry the man. (See full article
at https://www.vice.com[1]). In Rome, if the woman
was married, she could be tried for adultery. As a matter of law,
rape could be committed only against a citizen in good standing.
The rape of a slave could be prosecuted only as damage to the
owner’s property. Even under the Christian civilization in Rome,
women were being blamed for rape. Constantine ordered the female
should be punished along with the male “abductor” as she was still
considered an accomplice, “on the grounds that she could have saved
herself by screaming for help”. In the African culture, rape was
highly frowned at. The man was seen to have brought shame on his
family and community for committing such an abominable act, and
severely punished for it. However, the woman was thereafter
discriminated as being unclean, especially if she was a virgin, and
might end up not being married.
In the modern era, it was in 1285 that rape was made a capital
punishment in England, but jurors were always reluctant to convict
people of the crime because women were perceived of as temptresses
who asked for or deserved assault, according to historian Sean
McGlynn. In pre Columbus America, women were seldom raped. If they
were, however, there were native courts, who would decide. And the
victim was given power to choose what kind of punishment for the
man.
Sociological and Psychological Approach to
Rape
From the foregoing, it is obvious that history over time has
influenced how the society today views rape. It is often seen as
what the victim deserves, for different reasons. Instead of
empathising with the victim, the blame is put on her for being the
temptress. The evil and lustful mind of man is not always seen.
This no doubt, has informed the cause of the consistency of the act
against women. Other sociological causes include: poverty, physical
environment, family and peer influence, early child exposure, wrong
sexual orientation, alcoholism and drug addiction, gangs
activities, war, ethnic clashes and so on.
In their article, “The Emotional and Psychological Aspects of
Rape”, published in the Journal of Evolution of Medical and Dental
Science, Vol. 3 Issue 34, Aug 11, 2014, Smrithi Chabra, Devdas Rai
and Kevin Abraham Chacko pinpoint the psychology behind rape as
follows:
- Men disadvantaged by reason of low socio-economic status. For
lacking the means to secure a woman, they resort to rape. - Opportunist Rapists, who seek out women and only resort sexual
violence or rape if such women are not receptive.
- High mating effort rapists similar to the second category, who
are more sexually experienced, aggressive and dominant, and employ
tactics to achieve their plots.
- Others include: having low opinion of women, anger against
women and urge to dominate them, lack of knowledge of the impact of
rape on the victim, antisocial traits in men, low self-esteem (for
example, inability to courageously propose for a relationship) and
so on.
Moral and Spiritual Perspective
Low moral standards in society have also contributed to the
menace of rape. The sacredness of the act of sex, which both in the
African tradition and other religions of the world, has been
disregarded. Sex which is meant to be an act between lawfully
married couples, is indulged in by anyone who feels the urge to.
Lust and lack of self control among men are equally a contributory
factor. In order to justify this weakness, men use the immodest
dressing as an excuse for rape. It is vital to state that some
women dress indecent. However, this can never be used as a license
to rape the woman. What happens to correcting such a woman? It is a
temptation. Agreed. But temptations can be overcome. Also, lack of
acceptance of truth make men indulge in this ignoble, inhumane act.
If a man knows he desires a woman but does have lawful right to
have her, he is meant to accept that fact.
Legal Approach
Having considered the diverse perspectives about rape, legal
point of view will be delved into here. There is no gain saying
that the legal framework in Nigeria on this issue is deficient and
inadequate. The definition of rape given in both the Penal and
Criminal Codes as well as State Criminal Laws are flawed with
evident gaps. These definitions are not gender neutral but gender
specific. They also do not accommodate recent evolving sexual acts
such as anal, oral intercourse and so on. The Violence Against
Persons Prohibition Act is progressive in this aspect as re-defines
rape in ample terms but unfortunately applies only in the Federal
Capital Territory.
The problem associated with prosecution of rape such as lack of
privacy of the victim’s identity, prolonged trial time, lack of
trained personnel handling rape cases which require sensitivity and
empathy, problem of corroborative evidence as a matter of judicial
practice which is to come from medical evidence or eye witness clog
the fair criminal adjudication of this offence in Nigeria. These
are discriminatory procedures that require change in our Criminal
Justice system like in other jurisdictions like English Criminal
Justice and Public Order Act 1994 which has abolished the need for
corroboration in rape cases.
The standard and burden of proof in rape cases is one that
persecutes female victim and makes the trial that of the victim
rather than that of the accused.
Effects of Rape on Women
‘It is five minutes of pleasure for him, but for a life time of
pain for her’ goes the popular saying. The effects of rape on women
are numerous. The worse of it is that of psychological trauma. The
humiliation and stigma associated with rape is what keeps majority
of the victims from disclosing it. Depression, flashbacks- memories
of rape as if it was taking place again, suicide attempts and
intentional self-harm, sleep and eating disorders, anger and guilt,
hyperactive sexual desire disorder among others are the
psychological consequences of rape.
The physical effects upon the victim are: pain, injuries,
sexually transmitted diseases, unwanted pregnancy and even death.
The social impact of rape on the victim includes, self withdrawal,
vengeance, hatred for men among others. This leads to the victim’s
reluctance to committing to a man subsequently, affecting the
instruction of marriage and procreation. (See Smrithi Chabra et al,
supra).
Conclusion and Recommendations
The causes of rape range from historical, sociological,
psychological, moral and legal factors. The belief system and legal
approach to the issue has contributed to its ravaging effects. The
effects of rape on the woman and society are devastating. This act
is highly condemned and must be discouraged. In light of this, the
following are recommended to stop the crime of rape:
Proper orientation of men: men should see all women as humans
like them, with equal rights. Women are not weaker vessels. Even if
men see them as such, they should rather protect them than taking
undue advantage. Victim blaming should seriously be
discouraged.
Women must also take precautions to protect themselves, by
arming themselves when necessary and being vigilant to avoid being
prey to these perpetrators.
On the part of religious leaders, the truth must be taught. For
example in Islam, according to a Sunni hadith, the punishment for
committing rape is death, there is no sin on the victim, nor is
there any worldly punishment ascribed to her. In the Christian
religion, rape is considered a sexual sin, since it is an act
contrary to the sixth commandment. Therefore, preaching to men
about lust and lack of self control should be as often as preaching
against indecent dressing among women.
Self control and discipline must be imbibed by men: the truth
must be accepted as to fact that a woman does not submit to you is
not yours to have.
Laws that incriminate rape and punish same should be reviewed.
The definitions of rape in these laws should be reviewed and
revised to make them gender neutral and not gender specific. These
laws also need to be reviewed to make them accommodate recent
evolving sexual acts such as anal, oral intercourse and so on. A
leaf can be borrowed from the Criminal Law (Sexual Offences and
Related Matters) Amendment Act (2007) of South Africa and the
definition of rape given by the United States Department of Justice
as these laws are gender neutral and take into cognizance these
various sexual acts.
Rapists should be severely punished and the actors in the legal
system should refrain from indirectly prosecuting the victim and
pampering the perpetrators. Just like other solutions have been
proffered, punitive measures through legislation for the punishment
of this offence is also necessary. These punitive measures and
principles are with a view to providing a sustainable solution to
curb this menace. The ‘duty of care’ principle elucidated by Lord
Atkins in the of Donogue v. Stevenson will
be adopted. This principle encompasses a general duty of care that
exists between two parties under the ‘neighbour principle’. For the
sake of clarity and understanding in this discourse the dictum of
the law lord will be replicated;
“You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law, is my neighbour? The answer seems to
be persons who are so closely and directly affected by my act that
I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which
are called into question.”
The physical and biological attributes of women and children
makes the table tilt more in their favour on this issue. She
embodies more sensitive features and characteristics compared to
her male counterpart in this aspect and is therefore more
vulnerable. She requires protection from the opposite sex that is
supposedly stronger because his biological and physical attributes
make it so. Thus, drawing from the duty of care principle set out
above, each and every person has a duty to protect the other
generally. And more specifically in this aspect the males where
required, owe a duty of protection to females around them. This is
to ensure that other degenerate males who seek to perpetuate this
crime around them are brought to book or even prevented from doing
so. This can be through males around, whether related to the female
or not, preventing such abuses.
What then happens when these males who are supposed to be
protecting females are the ones perpetuating the crimes? This is
where the law kicks in. The law should be made in such a way that
this breach of the duty of care is made criminal. Both the
perpetrator himself and those who should have properly prevented
the perpetuation should be severely punished unless the latter can
successfully prove that they have discharged such a burden. This is
to make each and every person more vigilant towards the needs and
protection of females around them in this regard.
Additionally, punishment upon conviction as castration in
addition to any other punishment should be imposed. This is because
rape offenders are more often recurrent offenders and so upon
conviction they should be punished in this manner as they have lost
the right to having the part of the body used in perpetuating the
offence and to prevent future perpetuation. Drastic measures such
as these are much needed to reduce this menace.
The standard of proof should be reviewed as well. A principle
similar to the tortious doctrine of res ipsa loquitur (the
facts speak for itself) should be adopted and incorporated in our
laws regarding rape cases. Where it is evident or it is established
that there is a prima facie case of rape, this should be
the standard of proof. For example, a case where there are video
recordings or pictures of the crime evidently showing there was
rape and there is a specific accused person, res ipsa
loquitor should be the standard of proof. Bearing in mind the
extent of the burden it places on the defense and the fact that our
criminal justice system is proof beyond reasonable doubt in all
cases murder inclusive, this should be imposed for a limited period
of time to serve its punitive purpose of discouraging such criminal
tendencies and conducts.
Also, in order to prevent cases where false accusations are made
against persons of rape, the law should also provide punishment of
imprisonment for the person who falsely accuse another of rape and
other positive steps to prevent the occurrence of this and
restoration of the name and reputation of such wrongly accused
persons.
In totality, radical and positive action by law makers and the
judiciary-affirmative action, total re-orientation and overhauling
of belief systems that promote the entitlement of a male to a
female that can culminate in rape should be taken. Objectification
of females in the society (for example, Posters in hotels of unclad
women and the likes) which is somewhat rampant now should be
stopped as this is a failure of the society to protect its citizens
(females in this instant) as it allows for the breach of the duty
elucidated above. It is also a violation of public morals and
policy as it exposes children to such obscene vices.
You can make your contributions/observations via
email: judeayua6@gmail.com[2], benedictaolagunju1@gmail.com[3]
By J. T. Ayua & I. I. Olagunju
Introduction
The issue of sexual violence against women and children has
lingered for ages. This menace has become a can of worms in
society, bedevilling the precious and rare gift of nature,
the woman. In late May, 2020 in Nigeria, Vera Uwaila, an
undergraduate, 22, of the University of Benin, was brutally raped
and killed in a church building. In less than a week, a sixteen
year old was gang raped and killed in Ibadan, Oyo state. In the
first week of June, the same year, a thirteen year old was gang
raped and left half dead by four men in Kaduna, Nigeria. These are
but a few of many unknown cases of rape. Statistics has it that 1
out of every 4 girls is sexually molested. The issue of rape is a
recurring sensitive issue cutting across various jurisdictions and
generations. There are different perspectives and points of view on
this issue with each a culminating from a variety of factors. In
this article, the authors, aspirants to the Nigerian Bar attempt to
evaluate the causes of rape of women, from the historical,
sociological, psychological, moral, spiritual and legal
perspectives, as well as proffer solutions. The two authors are of
the opposite sexes, in order to balance the probable gender
sentiments towards the issue of rape.
Rape is defined as the act of forcing sexual intercourse upon
another person without their consent or against their will;
originally coitus forced by a man on a woman, but now any sex act
forced by any person upon another person. See also sections 357
Criminal Code Act and 282 Penal Code for the definition of rape in
Nigeria.
History of Rape
Rape dates back to antiquity. Robert Kawashima, who teaches
Biblical law at the University of Florida, referenced the ancient
near east, including Israel, as having an improper notion of
‘forcible rape’–just adultery with another man’s wife or
fornication with another man’s virgin daughter. The other man, in
either case, was the victim of the crime. In Babylonia, if a woman
who was set to be married was raped and she was a virgin, the
rapist would be killed. But if the woman was married, she would be
killed, too. In Assyria, the father of a rape victim was allowed to
rape the rapist’s wife as punishment. In Israel, if a woman was
raped within the city, she would be killed with the man. If outside
the city, she would be forced to marry the man. (See full article
at https://www.vice.com[1]). In Rome, if the woman
was married, she could be tried for adultery. As a matter of law,
rape could be committed only against a citizen in good standing.
The rape of a slave could be prosecuted only as damage to the
owner’s property. Even under the Christian civilization in Rome,
women were being blamed for rape. Constantine ordered the female
should be punished along with the male “abductor” as she was still
considered an accomplice, “on the grounds that she could have saved
herself by screaming for help”. In the African culture, rape was
highly frowned at. The man was seen to have brought shame on his
family and community for committing such an abominable act, and
severely punished for it. However, the woman was thereafter
discriminated as being unclean, especially if she was a virgin, and
might end up not being married.
In the modern era, it was in 1285 that rape was made a capital
punishment in England, but jurors were always reluctant to convict
people of the crime because women were perceived of as temptresses
who asked for or deserved assault, according to historian Sean
McGlynn. In pre Columbus America, women were seldom raped. If they
were, however, there were native courts, who would decide. And the
victim was given power to choose what kind of punishment for the
man.
Sociological and Psychological Approach to
Rape
From the foregoing, it is obvious that history over time has
influenced how the society today views rape. It is often seen as
what the victim deserves, for different reasons. Instead of
empathising with the victim, the blame is put on her for being the
temptress. The evil and lustful mind of man is not always seen.
This no doubt, has informed the cause of the consistency of the act
against women. Other sociological causes include: poverty, physical
environment, family and peer influence, early child exposure, wrong
sexual orientation, alcoholism and drug addiction, gangs
activities, war, ethnic clashes and so on.
In their article, “The Emotional and Psychological Aspects of
Rape”, published in the Journal of Evolution of Medical and Dental
Science, Vol. 3 Issue 34, Aug 11, 2014, Smrithi Chabra, Devdas Rai
and Kevin Abraham Chacko pinpoint the psychology behind rape as
follows:
- Men disadvantaged by reason of low socio-economic status. For
lacking the means to secure a woman, they resort to rape. - Opportunist Rapists, who seek out women and only resort sexual
violence or rape if such women are not receptive.
- High mating effort rapists similar to the second category, who
are more sexually experienced, aggressive and dominant, and employ
tactics to achieve their plots.
- Others include: having low opinion of women, anger against
women and urge to dominate them, lack of knowledge of the impact of
rape on the victim, antisocial traits in men, low self-esteem (for
example, inability to courageously propose for a relationship) and
so on.
Moral and Spiritual Perspective
Low moral standards in society have also contributed to the
menace of rape. The sacredness of the act of sex, which both in the
African tradition and other religions of the world, has been
disregarded. Sex which is meant to be an act between lawfully
married couples, is indulged in by anyone who feels the urge to.
Lust and lack of self control among men are equally a contributory
factor. In order to justify this weakness, men use the immodest
dressing as an excuse for rape. It is vital to state that some
women dress indecent. However, this can never be used as a license
to rape the woman. What happens to correcting such a woman? It is a
temptation. Agreed. But temptations can be overcome. Also, lack of
acceptance of truth make men indulge in this ignoble, inhumane act.
If a man knows he desires a woman but does have lawful right to
have her, he is meant to accept that fact.
Legal Approach
Having considered the diverse perspectives about rape, legal
point of view will be delved into here. There is no gain saying
that the legal framework in Nigeria on this issue is deficient and
inadequate. The definition of rape given in both the Penal and
Criminal Codes as well as State Criminal Laws are flawed with
evident gaps. These definitions are not gender neutral but gender
specific. They also do not accommodate recent evolving sexual acts
such as anal, oral intercourse and so on. The Violence Against
Persons Prohibition Act is progressive in this aspect as re-defines
rape in ample terms but unfortunately applies only in the Federal
Capital Territory.
The problem associated with prosecution of rape such as lack of
privacy of the victim’s identity, prolonged trial time, lack of
trained personnel handling rape cases which require sensitivity and
empathy, problem of corroborative evidence as a matter of judicial
practice which is to come from medical evidence or eye witness clog
the fair criminal adjudication of this offence in Nigeria. These
are discriminatory procedures that require change in our Criminal
Justice system like in other jurisdictions like English Criminal
Justice and Public Order Act 1994 which has abolished the need for
corroboration in rape cases.
The standard and burden of proof in rape cases is one that
persecutes female victim and makes the trial that of the victim
rather than that of the accused.
Effects of Rape on Women
‘It is five minutes of pleasure for him, but for a life time of
pain for her’ goes the popular saying. The effects of rape on women
are numerous. The worse of it is that of psychological trauma. The
humiliation and stigma associated with rape is what keeps majority
of the victims from disclosing it. Depression, flashbacks- memories
of rape as if it was taking place again, suicide attempts and
intentional self-harm, sleep and eating disorders, anger and guilt,
hyperactive sexual desire disorder among others are the
psychological consequences of rape.
The physical effects upon the victim are: pain, injuries,
sexually transmitted diseases, unwanted pregnancy and even death.
The social impact of rape on the victim includes, self withdrawal,
vengeance, hatred for men among others. This leads to the victim’s
reluctance to committing to a man subsequently, affecting the
instruction of marriage and procreation. (See Smrithi Chabra et al,
supra).
Conclusion and Recommendations
The causes of rape range from historical, sociological,
psychological, moral and legal factors. The belief system and legal
approach to the issue has contributed to its ravaging effects. The
effects of rape on the woman and society are devastating. This act
is highly condemned and must be discouraged. In light of this, the
following are recommended to stop the crime of rape:
Proper orientation of men: men should see all women as humans
like them, with equal rights. Women are not weaker vessels. Even if
men see them as such, they should rather protect them than taking
undue advantage. Victim blaming should seriously be
discouraged.
Women must also take precautions to protect themselves, by
arming themselves when necessary and being vigilant to avoid being
prey to these perpetrators.
On the part of religious leaders, the truth must be taught. For
example in Islam, according to a Sunni hadith, the punishment for
committing rape is death, there is no sin on the victim, nor is
there any worldly punishment ascribed to her. In the Christian
religion, rape is considered a sexual sin, since it is an act
contrary to the sixth commandment. Therefore, preaching to men
about lust and lack of self control should be as often as preaching
against indecent dressing among women.
Self control and discipline must be imbibed by men: the truth
must be accepted as to fact that a woman does not submit to you is
not yours to have.
Laws that incriminate rape and punish same should be reviewed.
The definitions of rape in these laws should be reviewed and
revised to make them gender neutral and not gender specific. These
laws also need to be reviewed to make them accommodate recent
evolving sexual acts such as anal, oral intercourse and so on. A
leaf can be borrowed from the Criminal Law (Sexual Offences and
Related Matters) Amendment Act (2007) of South Africa and the
definition of rape given by the United States Department of Justice
as these laws are gender neutral and take into cognizance these
various sexual acts.
Rapists should be severely punished and the actors in the legal
system should refrain from indirectly prosecuting the victim and
pampering the perpetrators. Just like other solutions have been
proffered, punitive measures through legislation for the punishment
of this offence is also necessary. These punitive measures and
principles are with a view to providing a sustainable solution to
curb this menace. The ‘duty of care’ principle elucidated by Lord
Atkins in the of Donogue v. Stevenson will
be adopted. This principle encompasses a general duty of care that
exists between two parties under the ‘neighbour principle’. For the
sake of clarity and understanding in this discourse the dictum of
the law lord will be replicated;
“You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law, is my neighbour? The answer seems to
be persons who are so closely and directly affected by my act that
I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which
are called into question.”
The physical and biological attributes of women and children
makes the table tilt more in their favour on this issue. She
embodies more sensitive features and characteristics compared to
her male counterpart in this aspect and is therefore more
vulnerable. She requires protection from the opposite sex that is
supposedly stronger because his biological and physical attributes
make it so. Thus, drawing from the duty of care principle set out
above, each and every person has a duty to protect the other
generally. And more specifically in this aspect the males where
required, owe a duty of protection to females around them. This is
to ensure that other degenerate males who seek to perpetuate this
crime around them are brought to book or even prevented from doing
so. This can be through males around, whether related to the female
or not, preventing such abuses.
What then happens when these males who are supposed to be
protecting females are the ones perpetuating the crimes? This is
where the law kicks in. The law should be made in such a way that
this breach of the duty of care is made criminal. Both the
perpetrator himself and those who should have properly prevented
the perpetuation should be severely punished unless the latter can
successfully prove that they have discharged such a burden. This is
to make each and every person more vigilant towards the needs and
protection of females around them in this regard.
Additionally, punishment upon conviction as castration in
addition to any other punishment should be imposed. This is because
rape offenders are more often recurrent offenders and so upon
conviction they should be punished in this manner as they have lost
the right to having the part of the body used in perpetuating the
offence and to prevent future perpetuation. Drastic measures such
as these are much needed to reduce this menace.
The standard of proof should be reviewed as well. A principle
similar to the tortious doctrine of res ipsa loquitur (the
facts speak for itself) should be adopted and incorporated in our
laws regarding rape cases. Where it is evident or it is established
that there is a prima facie case of rape, this should be
the standard of proof. For example, a case where there are video
recordings or pictures of the crime evidently showing there was
rape and there is a specific accused person, res ipsa
loquitor should be the standard of proof. Bearing in mind the
extent of the burden it places on the defense and the fact that our
criminal justice system is proof beyond reasonable doubt in all
cases murder inclusive, this should be imposed for a limited period
of time to serve its punitive purpose of discouraging such criminal
tendencies and conducts.
Also, in order to prevent cases where false accusations are made
against persons of rape, the law should also provide punishment of
imprisonment for the person who falsely accuse another of rape and
other positive steps to prevent the occurrence of this and
restoration of the name and reputation of such wrongly accused
persons.
In totality, radical and positive action by law makers and the
judiciary-affirmative action, total re-orientation and overhauling
of belief systems that promote the entitlement of a male to a
female that can culminate in rape should be taken. Objectification
of females in the society (for example, Posters in hotels of unclad
women and the likes) which is somewhat rampant now should be
stopped as this is a failure of the society to protect its citizens
(females in this instant) as it allows for the breach of the duty
elucidated above. It is also a violation of public morals and
policy as it exposes children to such obscene vices.
You can make your contributions/observations via
email: judeayua6@gmail.com[2], benedictaolagunju1@gmail.com[3]