Some weeks ago, people on social media discussed a particular African reality TV Series on a popular online streaming platform. In this series, one of the main characters discussed how she met her husband at the age of 15. Wifey talked about her husband being her first touch, first kiss, her first everything. At the time, her husband was 24 years old.
Immediately, I thought about the notion of statutory rape. I am not suggesting that meeting someone at 15 automatically means that there were sexual relations at 15; it is very possible that both parties waited till the legal age of consent before engaging in such activities.
Let’s discusses the concept of statutory rape and the Nigerian legal age of consent.
What is Consent?
In the context of statutory rape, consent is the age at which a person is deemed mentally able to determine whether or not they wish to engage in sexual activities. Where a person has sexual relations with someone who is deemed not to have the mental capacity to decide whether or not they wish to engage in sexual relations, the act will be considered as statutory rape. Sexual relations include but is not limited to sexual intercourse, oral sex, inappropriate touching on or in private areas of the body, and other related activities.
What is the Nigerian Legal Age of Consent?
The leading legislation that deals with the interest of children is the Child Rights Act 2003 (the “Act”). Under the interpretations section of this Act, a “child” means a person under the age of 18 years. The general tone of this Act is that the protection of the interests of children are of paramount concern. Section 31 of the Act deals specifically with Unlawful Sexual Intercourse and it states:
(1) No person shall have sexual intercourse with a child.
(2) A person who contravenes the provision of Subsection (1) of this section commits an offence of rape and is liable on conviction to imprisonment for life.
(3) Where a person is charged with an offence under this section, it is immaterial that ‐
(a) The offender believed the person to be of or above the age of eighteen years; or
(b) The sexual intercourse was with the consent of the child.
From the above excerpt, the issue of consent in Nigeria still has grey areas as the law does not categorically state that the legal age of consent to sexual intercourse is 18. What the law does do is that it provides 18 years as the benchmark in the determination between who is to be deemed as a child and who is an adult. You will also see from the above excerpt that the fact the person committing the offence (male or female) did not know the minor was under the age of 18 does not cancel the fact that they have committed an offence under the Act. Lastly, any person found guilty of this offence will be liable to life imprisonment.
Inconsistencies Within Nigerian Legislation
We have often seen that when it comes to child abuse in Nigeria, a perpetrator can walk free, depending on the applicable law in the state in which the offence was committed. As stated above, the Child Rights Act does not specifically state that the legal age of consent to sexual intercourse is 18 years old, it merely infers same.
Aside from customary norms of the various states in Nigeria, several laws have held varying positions when it comes to determining the legal age of consent. Some examples of these are as follows:
- Section 3(1)(e) Matrimonial Causes Act, refers to marriageable age, but does not define the same. However, Section 57(2)(a) refers to the “children of the marriage” being persons under the age of 16, thus meaning a child is a person under 16.
- Section 221 Criminal code Act, the age of consent is 16 years.
- Section 23 of the Cyber Crime (Prohibition, Prevention ETC) Act, the age of consent is 18 years.
The Child Rights Act has, however, been adopted in most of the states of the Federation of Nigeria, so it is deemed as the authority on this issue.
The Mischief Rule of Interpretation
The Mischief Rule is a rule used in the interpretation of ambiguous statutes. Where the wording of a part of a statute is not clear, the courts will focus on what might have been the intention of the legislators when drafting the statute. This principle aims at finding out the mischief and defect in a statute and implements a remedy for the same.
With regard the Child Rights Act, it is clear that the Act is intended to protect the interests of children, the Act has deemed a child as being someone under the age of 18 years old, and the Act is not concerned about the offender being aware of the child’s age, or whether the child, by words or by implication, gave consent to the sexual relations.
Whenever society discusses rape and child abuse, our minds often shoot towards the protection of the girl child, however, the male child is also at risk from underage abuse. We often find male children having lost their virginity at far below the age of 15 and often to girls who are older than them. Where they lack the capacity to consent to this act, this too should be deemed as statutory rape.
Back to this popular show, many have called the romance between wifey and her husband true love, and nothing in this article insinuates that there were any sexual relations whilst wifey was underage. But even if there was, what would be the possible consequences? Well that is a topic for another day.