Could sex against consent of spouse be regarded as rape? Could having forceful canal knowledge of oneโs spouse be said to be sexual abuse? Why do some women and men seek divorce over oneโs ย spouse? What is the position of law over the issue that is fast becoming worrisome? This and more form the crux of this ย Vox Populi.
For quite a while, the issue whether incident of rape can be established in marriage has been generating debates among members of the public, especially legal practitioners.
To some lawyers, Nigerian law has failed to change with time. They hold the belief that as human beings evolve and societies change, laws must keep up with the changes and define our interactions in the context of our new societies. There are many areas of laws in Nigeria that have not kept up with the times, and there are areas of modern Nigerian society that need the guiding hands of legislature or pronouncements from the courts. The Nigerian Criminal Code in Section 357 states that, “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained 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.” Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration.โ
In other words, some legal personalities have posited that there is nothing such as marital rape and that if it so exists, itโs not an offence in Nigeria. A husband cannot rape his wife. It is assumed that the wife gives implied general consent to sexual intercourse with her husband upon entering the marriage contract. This implied consent is revocable either by an order of a court or a separation agreement.
Similarly, under the Penal Code, there is no offence of marital rape, provided the wife has attained the age of puberty.
PILOT LAW, however, samples legal practitioners views to the issue. Excerpts:
Not possible under Islamic law ย – Abdul Tunde Gegeleย
It’s definitely not possible in marriage. Under Islamic law, the husband is at liberty to make love to his wife anytime whenever he requests, the woman is bound to oblige. The man can only be said to have used force when the marriage has broken down or when the marriage is about to hit the rock. Under Islamic law whichever way the man choose to have sex with the woman is not considered as rape.
It’s not possible – Yusuf Aluko
It’s not possible. There is nothing called rape in marriage. Immediately a man and woman solemnise their union through marriage, they have given consent to share each otherโs bodies. Whether the sex is obtained forcefully or not, that is their concern and it is no crime because they’ve been joined in matrimony.
It’s criminal – Sulyman Abdullahย
Anyone who forces his or her spouse into sexual relationship has committed an offence called rape. It’s established in the law, most especially, marriage under the act. When one marries under the act, it doesn’t mean one can have canal knowledge of the spouse anyhow. The consent of the opposite sex is required before any form of sexual intercourse, otherwise, it will be tantamount to another thing.
Culturally, it is right ย – Usman Omotoshoย
In Nigeria generally, it’s not possible. We don’t have cases where husband alleges wife of rape or vice versa. Our culture doesn’t support such in our system.
ย Itโs ugly trend- Antonio Oshiniweย
No, according to our law but ordinarily, yes. I said yes because sex should be with the consent of two parties. A client has once told me she got home tired and her husband insisted on having sex with her. The husband beat her up and ended up having sex with her. Ordinarily, that should amount to rape but in our law, once you marry a woman, and she becomes wife, it’s not possible to rape her. There are some laws that bothers on domestic violence we can use to curtail this menace. Our lawmakers need to sit up too and do something about that aspect of the law. But I also doubt if the lawmakers will do anything about it because most of them are guilty of it.
There โs needs for law amendment – Rafat Abdul Solagberuย
I donโt believe any development in marriage could be regarded as rape especially when the couple are legally married. They’re free to each other. But ordinarily, a man can still rape a woman he’s legally married to if the consent is not sought. Law should be amended so that men can know their limit, it’s not right for man to force his way, man should be cautioned.
Itโs difficult to prove – Dauda Olayinka Jimohย
There is what is called marital rape but very difficult to prove. There must be consensure between the two parties involved in sex. Where other party fails to give consent, the other one must not use force. The fact that they are husband and wife doesn’t mean they can’t commit rape. Rape in marriage means when either husband or wife fails to give approval for sex. Women have been covering this up because they feel it’s not right for them to come out to the public to report that their husbands rape them. In African setting, we believe part of the responsibilities of a woman is to give sex while that of the husband is to cater for the home. If a wife says husband rape hers, the society will scold her and ask if the man is failing in his responsibility of providing for the home.
Rape can only be sustained under common law – Yusuf Gbajumo
Ingredients of rape are five in number, though proving the case of rape depends largely on which law is addressing it. Under Common Law, it’s possible to sustain rape against husband or wife, but under Sharia Law, there is nothing of such. It can only be proven by any member of the party when there is no consent and there was penetration, especially when it’s forceful.
