#HEALTHTALK 13: Combating rape in Nigeria: A pragmatic approach to the issues (Part 2)

In the first part of this article, we established the fact that rape is seen in law as a crime, and so is provided for under criminal justice laws including the Criminal Code (in Southern Nigeria), the Penal Code of Northern States (in Northern Nigeria), the Violence Against Persons Act of 2015 (in Abuja and other states where it has been domesticated), as well as other local state laws such as the Lagos State Criminal Law, etc.

Also, we highlighted various health impacts of rape on women and girls.

In this second and final part of the article, a lot of focus will be on highlighting the provisions of the law regarding rape, as well as more pragmatic strategies that should be adopted by all stakeholders in the fight against it.

Rape is an existential issue. I wrote about how analogous it is to robbery in an earlier publication.

In today's world, rape is an existential issue both for females and males. A disproportionately high number of females are victims of rape and other forms of sexual violence than males. However, this does not take away from the fact that many males are victims of rape and other forms of sexual violence too.

Sexual violence against children (male and female) is a leading cause of differences in sexual orientation, sexual disorders, and other effeminate and queer behaviors among adults, particularly those who were victims as children.

Many women in the prime of their years right now suffer from depression and other negative psychological effects due to sexual violation they had suffered sometime during the course of their lives.

Whatever may have been the circumstances under which they were violated does not matter. What matters is that for some of them, their attackers have never been (and will never be) caught or punished because of various reasons. This often leaves these victims wanting closure and doubting their safety in the world. Some even develop very serious and detrimental trust issues too.

A lot of these alleged attackers have not and will not be caught nor punished because often times, their victims do not take the right steps after they have been attacked, to secure forensic evidence against them to be used in court.

We have seen many women come forward bravely to name their accusers in public with the attendant media buzz it creates, and with various NGOs coming up to stand with the women to further accuse the alleged attackers, even if it is without a single shred of forensic evidence.

Well, rape is a crime, and is answerable only to the relevant Criminal Code of the part of Nigeria where it is alleged to have happened. And none of the criminal codes admit emotional outbursts as evidence of the crime. They only admit and consider credible forensic evidence.

In fact, as Chukwudubem E. Ezeh Esq. puts it, "Hearsay evidence is not admissible as credible evidence. So, it is not enough to tell the court that "A" told me that "B" raped him or her. The evidence must be compelling enough to warrant a conviction".

"This is to avoid occasions of wrongful conviction. Because it has to be careful not to convict a person based on mere allegations, the court cannot be bullied into conviction."

Ifeoma Solanke Esq. says that in law, "A witness is someone who saw it happen. If you did not see it happen, your testimony will not be taken. It would be hearsay." So, unless there is a third party who witnessed the rape, the most credible witness would be the victim themselves.

In Dr. Segun Oduneye v. The State 
Citation: (2001) LPELR-SC.88/2000, the Supreme Court stated that, "It is now trite that in all criminal cases, without exception, the prosecution have the heavy responsibility to prove the offence preferred against the accused beyond reasonable doubt".

Also, in Alewo Abogede v. The State 
Citation: (1996) LPELR-SC.20/1995, the Supreme Court also said that," The credibility of evidence does not ordinarily depend on the number of witnesses that testify on a particular point. The question is whether the evidence of one credible witness, on a particular point, is believed and accepted. If the answer is in the affirmative, then it is sufficient to support a conviction".

Hence, it is clearly seen that if a person is raped, their first course of action afterwards should not necessarily be to make a report either to the police or to a neighbor or friend. Their first course of action should be to secure forensic evidence that establishes what has happened and the identity of their attacker(s) by going to report to medical personnel at any hospital.

Igoma Emenike Esq. puts it this way, "It is advised that after rape, a girl should go immediately to the hospital first. No bathing or brushing or even changing clothes. Go to a hospital like that. Evidence is all over her, not only to show that she was raped, but also to specify who did the act. After examination at the hospital, then she can go to the police to file a report or contact her lawyer or whatever. But the hospital should be the first port of call."

She further adds, "Now, if she's lost all the evidence, she has nothing to bring against the alleged attacker in court. Court doesn't work with sentiments or suspicions. Evidence is what rules. But if she has a documentation anywhere, like a chat or call recording, anything where the attacker expressly admits to the rape, then that can serve."

"Otherwise, if she proceeds to due without evidence, the alleged attacker may end up suing her for defamation."

Every hospital has nurses, doctors, or trained rape-kit professionals on-call to help you through the process. These people will never demand that you tell them everything that happened as it is unnecessary. The only two things they need to know in order to protect your health are: 1.) “Did the person use a condom?” and
2.) “What orifices were penetrated?”

Forensic evidence include semen and physical injuries such as bruises or scratches. When evidence has been secured at the hospital, the next step should be to go and make an official report at the nearest police station. Because rape is a crime captured by the criminal law of The State, only The State can and will be able to take the accused to court on behalf of the victim. Hence the need for the police report.

According to Barr. Emenike, "A victim can only bring a civil suit (not a criminal suit) against the perpetrator, say for battery, emotional distress, loss of whatever, hospital bills, etc. This civil suit can run concurrently with the criminal suit".

However, in bringing such a civil suit, victims must keep in mind that statues of limitation in Nigeria limit the time period within which you can bring such a civil suit against your alleged attacker to six (6) years. If you bring such a civil case to court after six (6) years, it would be statue-barred. This is according to Chapter 8, section 92 of the Administration of Criminal Justice Act of 2015.

When exactly is rape said to have happened? 
Section 357 of the Criminal Code 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 called rape.

Similarly, Part 1, section (1), sub-section (1) of the Violence Against Persons Act of 2015 states that "A person commits the offence of rape if:
(a) he/she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else.

(b) the other person does not consent to the penetration; or

(c) the consent is obtained by force or means of threat 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 the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse."

Clearly, it can be seen that while the Criminal Code defines rape as a crime possible against ONLY females, the Violence Against Persons Act of 2015 is gender-blind in its definition of the crime.

What this means is that while it can be difficult (if not impossible) for a male victim of rape to obtain justice based on the Criminal Code, females do not have that limitation under the code. But the Violence Against Persons Act of 2015 is more liberal and gender-inclusive.

The other limitation is that the Violence Against Persons Act of 2015 is primarily a law of the FCT Abuja, and has not been domesticated in many states of the country. So, prosecutors in such states of the country where the law is not domestic yet will find it difficult to try male rape cases. This is not good for the fight against rape for obvious reasons.

Hence, for females, rape is established to have happened if:
1.   There has been penetration of the vagina (carnal knowledge);
2.   The penetration was without the victim's consent;
3.   The penetration was with the victim's consent, but the consent was obtained by force, or through intimidation, threat of harm, the use of any substance capable of taking away the victim's will, or by impersonating the victim's husband.

Similarly, for males, going by the provisions of the Violence Against Persons Act of 2015, if there has been a penetration of either the mouth or the anus, subject to the other provisions, a rape case can be established to have occured.

Sex-for-Grades
It is common knowledge that in most Nigerian tertiary institutions, some lecturers demand for sex from their students, without which they will summarily be made to fail their courses, regardless of their true academic performances.

Both Solanke Esq. and Emenike Esq. agree that it is the position of the law that because such students were at the mercy of the lecturers in question (for the fact of they being in charge of their academic grading), such demands from the lecturers amount to intimidation.

And in the eyes of the law, when consent was given based on intimidation, it still amounts to rape.

However, the victim in this case will have to establish without any shadow of doubt, that the lecturer indeed demanded for sex as a condition for a favorable grading.

What is the punishment for rape? 
Both the Criminal Code and the Violence Against Persons Act of 2015 prescribe life imprisonment as the punishment for rape. But the latter makes some exemptions for where the accused is less than 14 years old, and also prescribes a minimum sentence of 12 and 20 years imprisonment for single and gang rape respectively.

Deficiencies in law and enforcement of laws against rape 
The Violence Against Persons Act of 2015 requires that a register of sex offenders be maintained and made public. But, according to a report by The ICIR, only Ekiti and Lagos states have such a register, though theirs' is not easily accessible and is said to not be regularly updated either.

The lack of an aggregated record of sexual offenders in Nigeria makes it difficult to state with certainty how many convictions have been recorded over a period of time.

The ICIR report claims that only 65 rape convictions have been secured in court between 1973 and 2019.

Futhermore, it is clear that the Criminal Code is in need of a review. The gender bias which is evident in how it defines rape needs to be eliminated.

Also, more clarity needs to be given by the Criminal Code, Violence Against Persons Act of 2015 and the Penal Code to what in fact constitutes sexual harassment and how it can be proven.

Closing thoughts
As much as rape is a menace that needs to be checked, it is my belief that checking it should not be done only from the angle of what the law provides or does not provide. Some thought also needs to be given to the issues that seem to synthesize the higher cases of female rape.

In my mind, if more males are raping females than females raping males, then there's a problem that we need to look more closely at.

Is the society really taking measures to ensure proper mental health development in the male population? How much does today's society invest in developing the boy child?

Do parents teach their boy child to be and act respectfully and responsibly towards girls, and respect their wishes at all times? What role do cultural norms and traditions which make the boy child existentially superior to the girl child play in programming the boy child mentally to develop into a predator without controls, who feels he can take whatever he wants at will?

How many NGOs that support, campaign and invest into girl child education and skill acquisition do we have? And conversely, how many of such NGOs do we have looking into issues regarding the development of the boy child?

How many government incentives are aimed at ensuring proper mental development for the boy child? And how many of such incentives are aimed at tackling issues like emotional trauma, peer pressure, gangstry, etc, which really concern the boy child more?

Is the society doing enough to ensure proper mental development of the boy child? Or is everyone sitting idly by, watching them raise themselves by themselves, and expecting them to be alright?

These are strategic questions begging for answers. I think it is time for all stakeholders in this issue to think more critically and pragmatically about the approach that has been adopted so far. Taking a more offensive position in dealing with the issue of rape than a defensive one will prove to be more rewarding in the long run.

Rape is a cankerworm. Anyone can be a victim of sexual assault regardless of their age, education, gender, ethnicity, social class and sexual orientation.

Often, rape victims happen to be familiar with their attackers, because the situation might startoff innocent and fun until it gets out of control.

At home, parents should monitor who is fond of their children. Have you tried to know why your child prefers staying with Uncle A to Uncle B sometimes?

Educate the young ones about rape and the consequences, and how they can overcome a rapist even when they don't have physical weapons around for defense.

Parents should also know the activities of their children with home tutors, servants and maids, and most adults that are in direct contact with the children.

Avoid taking drugs and alcohol which can lead to intoxication as they are also risk factors for sexual assaults, and leave the victim with shame and regrets after they come back to their senses. Protect yourself. Monitor your emotions and trust your instincts.

Make use of self defense, especially when the rapist(s) are unarmed. Report any suspicious move to parents and higher authorities. No need to cover it up till the act proper.

Men who are honest to admit they have self control issues are strongly encouraged to seek professional help from counselors.

In conclusion, you are your number one security personnel. So, stay safe by taking precautions, and always remember self defense as your number one weapon.

Stay safe.


Chukwubuikem Paul Anunaso is a CNBC Africa opinion writer and civil/structural engineer in Lagos, Nigeria. He is also the editor of The Paul Anunaso Blog, and can be reached at anunaso.cp@gmail.com

Contributors:
Chukwudubem E. Ezeh Esq. is a legal Practitioner, peace and conflict expert, and the current Assistant Secretary General of NBA Nsukka Branch. https://www.facebook.com/ezeh.bubusparks

Ifeoma Solanke is a Corporate Dispute Resolution Lawyer and Associate at Strachan Partners, Lagos. She is the founder of Justice Beyond Hashtags (@Beyond_Hashtags), and has worked with organisations on the campaign for the enforcement of the sexual rights of children and adults. She is also an advocate for justice reform and improvement of legal education and leadership.

Igoma Emenike Esq. is Barrister-at-law, and solicitor of the Supreme Court of Nigeria. She is also a fashion designer. Her works are on facebook.com/shallum.tkt and on Instagram

Chisom Deborah Ogbonna is a Biologist in Lagos, Nigeria, and a lead content developer for the #HealthTalk series.

Lilian Eze is a Nutritionist-Dietitian and teacher in Lagos, Nigeria. She is also a lead content developer for The Paul Anunaso Blog.