It is common knowledge amongst not just the people of Nigeria but also universally that where there is no consent to sexual intimacy, such actions would amout to RAPE.
Invoking the wordings of Section 357 of the Criminal Code applicable to the southern part of Nigeria which goes thus;
“Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is otained by force or by means of threats or intimidation of any kind, or by fear of harm, or by 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 which is called RAPE“
Following from the above, it suffices to state that consent is paramount in the act of sexual intimacy and where such consent has not been granted or it is obtained by force or threat or acting like the spouse of a married person to have the sexual intimacy, the offence of RAPE has been committed.
It should be noted that as far as the Criminal Code is concerned, the offence of rape is committed upon penetration into the vaginal.
Paragraphs A of Section 6 holds that the term “carnal knowledge” as used in defining the offence of rape implies that the offence is complete upon penetration.
This only means that the penis must thrust into the vaginal for the offence of rape to be commmitted.
Where there has been no thrusting of the penis into the vaginal, what would have been calculated to have taken place is attempted rape.
In the case of ISA v. KANO STATE (2016) LPELR-40011 (SC), it was settled by the law lords that sexual intercourse is deemed complete upon proof of penetration of the penis into the vaginal.
The problem that has faced many contemporary Nigerians is whether just as the law as held that forcefully having sexual intimacy with a woman which amounts to rape, applies to a man who has forcefully had sexual intercourse with his wife without her consent?
Rememer that we had earlier defined what a “carnal knowledge” is according to the provisions of the criminal code.
Defining “Unlawful carnal knowledge“, paragraphs B of Section 6 of the Criminal Code makes it abundantly clear that it only means “carnal connection which takes place otherwise than between husband and wife”
Put simply, any carnal knowledge, i.e. any sexual intimacy that has taken place between two persons who are not husband and wife and there was consent to the sexual intimacy, such amounts to unlawful carnal carnal knowledge which constitutes an offence of rape.
It can be calculated to only mean that sexual intimacy between husband and wife is lawful carnal knowledge which cannot constitute an offence even where there is no consent.
However the sexual intimacy must have taken place between the husband and the wife is not the business of the court.
Once it is legally established that the woman is wife to the man, an offence of rape cannot be brought agaisnt the man as it will be against the backdrop of the letters of the Nigerian criminal code.
Breathing life to the wordings of the Section above, RHODES-VIVOUR, J.S.C in the case of POSU v. STATE (2011) 2 NWLR (PT 1234) 393 S.C held thus;
“Rape is an unlawful carnal knowledge with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent.”
This only means that whether or not there was consent by the wife, the man cannot be said to have raped his wife.
Harsh as the law may be, the Law is the LAW.
At best, the woman can only bring an action for assault or wounding agaisnt the man if she had sustained injuries in the cause of the forceful sexual intimacy and not an action of rape.
LEGALJOE who is also JOSEPH ALIU is a Legal Series Analyst @ogunwatchng and a final year law student, Oou chapter and can be reached via; 09131704196, 09085773212, aliujoseph085@gmail.com
