Last week on our platform, we got an email from someone who was curious about why we didn’t write more articles about violence against women. The person had read our article on how to deal with Sexual Harassment in Nigerian workplaces, and had found it very helpful, and wanted us to write some more on that area, as not much information exists. So we decided to do just that.
This article is meant to give a guide on some facts about what is legally considered rape in Nigeria.
The best place to start would be to understand what we mean by ‘rape’: rape is non-consensual sexual intercourse between a man and a woman.
Firstly, there are no excuses for rape. No one deserves to be raped because of how they are dressed, or where they were hanging out, or because they passed out from drinking etc. There are NO EXCUSES. None!
We also would like to apologise in advance and state that the discussion will be about rape in the context of women being raped. Not only because this is more rampant, but also because under Nigerian law, a man cannot be raped (except in Abuja). For more information about this point, and a general overview of the laws of rape in Nigeria, you can read this article.
Fact 1: NO doesn’t mean YES
Sometimes you hear people say, she said ‘no, but she was still kissing me and so she wanted it’. Under the law, no cannot mean yes, if someone says no, she means no. It is not in your power to interpret her words in a different way and then get consent from that. No means no. If she says no, and you continue with the act thinking she means yes…this is rape.
Fact 2: Yes’ doesn’t always mean YES
This might seem a bit contradictory, but please bear with us while we explain. The mere fact that the person has said ‘yes’ does not mean that there is consent. For there to be consent it must be freely given, that means it must not be consent obtained through duress or threats of violence or intimidation, this is not true consent. Being bullied or coerced into saying ‘yes’ takes away the woman’s freedom and capacity and therefore a ‘yes’ obtained in those instances is not yes, if she says ‘yes’ in this circumstance and you carry out the act…this is rape.
Fact 3: Silence is NOT consent
One of the more ridiculous ‘facts’ that is sometimes boldly declared by people is that because a woman doesn’t say no and is silent, then she consents to the act. Do not assume that it is the responsibility of the woman to say no. It is the responsibility of the man to ensure that he has a valid yes before engaging in any sexual act. For the avoidance of any doubt…Silence is not consent. Silence has never been consent. Silence will never be consent. If she is silent, and you continue with the act…this is rape.
Fact 4: Incapacitated people CANNOT give consent
When a woman is legally incapable of consenting to sex, for example if she is intoxicated from alcohol consumption or any other drugs, you cannot have sex with her and claim that she consented. If she was drunk and you had sex, there was no consent…this is rape.
Fact 5: Consent is NOT in perpetuity
The mere fact that a woman agreed to have sex with you the night before, does not mean that she has agreed to have sex with you the next morning or the next week. Any consent given is for that specific act, and not any further acts. You must get consent for future acts.
You cannot say that because she said yes before, then it is assumed that the answer will always be yes. Saying yes to one act does not rob a woman of the right to say no for future offers of sex. If you have sex with someone based on previous consent and it is unwanted…this is rape.
Improving the Law on Rape
Although Nigeria has laws that deal with rape, these laws are a bit outdated, and they could do with updating to deal with modern day issues. If you read the article we mentioned above on laws on rape in Nigeria, you would have seen that the Violence Against Persons Prohibition Act has made a lot of strides in this regard, especially because:
- It’s the first piece of legislation in Nigeria to acknowledge that men can be raped
- It states that anal or oral sex can be rape
- It states that the instrument of rape does not have to be a penis, it can be another part of the body e.g. hand, or an object e.g. dildo or even objects like pens
- It recognises gang rape – minimum of 20 years’ imprisonment
- It recognises the rights of the victim to financial compensation
- It provides for the establishment of a sex offenders register
Unfortunately, the law is only applicable in FCT Abuja.
More States need to amend their criminal legislations to deal with issues like that, and also to bring in situations like withdrawal of consent, which is when a woman decides during sex that she does not want to carry on, and then the man disregards her wishes and carries on. This is rape in quite a number of countries; however, in Nigeria it is not explicitly covered in the offence of rape, although a good prosecuting lawyer with those kind of facts can make a case for sexual assault at the very least, or he/she may be even successful in making a case for rape. The law needs to make it clear that that withdrawal of consent effectively nullifies any earlier consent, and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse. It needs to be clear on this to make it easier for victims of rape to get justice.
If you are in doubt about whether consent has been given, check. It’s all of our responsibilities to seek a partner’s consent and to be confident we’ve received it before we engage in any kind of sexual activity with them.
We are not suggesting that you get your partner to sign a contract before sex…no, all we are saying is that you need to communicate with your partner and ensure you are both on the same page, and if you are in doubt about whether consent has been given, then don’t do it.
If you are still unsure about what consent means and when is sex not rape and when is it rape, you can watch this brilliant video that explains it in a very easy to understand way.
Have you been raped or do you know someone who has?
If you’ve been raped or sexually assaulted, then you should not suffer in silence. Rape is a crime in Nigeria, and if you are a victim you should report the matter to ensure that the person is punished, and ensure that the person does not get an opportunity to do it to someone else again in the future.
Reporting rape can be a very emotional and difficult thing to do, so you should consider getting support from organisations like Mirabel Centre and the Eight Foundation – where rape and sexual assault victims can get access to forensic medical assistance, and more importantly professional counselling services.
We hope you have found this information helpful. Please note that this information is provided for general informational purposes only and is not intended to be legal advice. No lawyer-client relationship is formed nor should any such relationship be implied. It is not intended to substitute for the advice of a qualified lawyer. If you require legal advice, please consult with a qualified lawyer
Photo Credit: Bobby Deal | Dreamstime.com