Rape: Injustice In The Nigerian Justice System

Rape: Injustice In The Nigerian Justice System 

By SONIA EDOUWAYE OSUNDE


 
THE issue of rape has always been one that has been kept in secrecy. Rape is the crime that often times goes unpunished. Rape is the occurrence which leaves its victims marred for life, both physically and emotionally.

 According to the Longman Dictionary of Contemporary English, rape is the act of forcing sexual intercourse or other sexual activity upon another person, without their consent and/or against their will.

 Rape is the most serious kind of sexual assault and is punishable in Nigeria with imprisonment for life, with or without whipping (Okonowo and Naish l980) the offence is defined in section 357 of the criminal code as follows:

 Any person who has unlawful carnal knowledge of a woman or girl without her consent or with her consent if it is obtained by force or by means of threat or intimidation of any kind or by fear of harm or by means of false 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.

 Okonkwo and Naish further explained that rape is a crime that can only be committed against a woman as the act is categorized as rape when there is penetration. Also stating that rape cannot occur between a man and his wife except a separation or divorce has been established between the two of them by a court of law. In such a case, the man can only be charged for assault against his wife.

 According to Wikipedia the free encyclopedia, a United Nations statistics report compiled from government sources showed that more than 250,000 cases of rape are recorded annually
 Wikipedia also explained that rape cases are hardly reported due to the extreme social stigma cast on the women who have been raped. In some countries, like Islamic countries, where adulteries are punishable by the law, if a victim comes out with a rape case and lacks sufficient evidence to prosecute the perpetrator of the act, the victim will also be tried and prosecuted for adultery.

 It was also discovered that the attitude of police towards rape victims also discourages them from coming out. From a research done in Turkey, it was discovered that 33% of police officers agreed with the assertion that “some women deserve rape” and 66% agreed that the physical appearance and behaviours of women tempt men to rape”

According to the American Medical Association, sexual violence and rape in particular is considered the most under reported violent crime and the most common reasons for this is that most of the victims believe that rape is a personal matter and fear of reprisal from the assailant.
The research suggests that between 75% - 95% of rape crimes are never reported to the police.

 Many countries including Nigeria do not criminalize marital rape because sex in marriage is considered an absolute right of the husband and can be taken with or without the consent of his wife. The very act of a woman refusing sex is unthinkable. In a research, 74% of women in Mali said that a husband is justified to beat up his wife if she refuses to have sex with him.

 In yet another research done in Nigeria, it was discovered that out of a sample of
 295 female students from Ebonyi State University, Abakaliki, 36.7% had
 experienced sexual harassment! victimization at least once on campus. Of this,
 32.4% had been raped

 In another study comparing sexual practices of 12-19 year old students with or without moderate intellectual disabilities in schools done in Oyo State, it was discovered that 68.3% of the sexually experienced intellectually disabled females reported history of rape victimization compared to the 2.9% of the sexually experienced non-disabled females shows that many women with intellectual disabilities are being raped constantly and the Nigerian society or justice system has made it almost an impossible desire to have justice prevail over the assailant. This goes to show that rape is a crime that often goes unreported and unpunished in the Nigerian society due to the way such cases are treated.

 Types of rape
 The following are the major types of rape that have been identified globally
 a. Male on female rape e. Date Rape
 b. Male on male rape f. Gang Rape
 c. Female on male g. lncestual Rape
 d. Adult on child h. Marital Rape

 Male on female rape is the type of rape where a male assailant sexually harasses a female victim.
 Male on male rape usually occurs when the assailant has homosexual tendencies. The victim here could equally be homosexual or might not be. Here the victim is sodomized by the assailant.
 Female on male rape usually occurs when the female is older than the male victim or if the victim is mentally challenged.

 Adult on child rape is the type of rape which occurs when the victim is too young to either know what is going on or protest. This particular type of rape is very rampant in Nigeria recently, there was an ongoing rape case featured in News Line where a police officer at Nasarawa allegedly raped a two year old girl. Till now justice has not prevailed.

 Other types of rape could include date rape, which occurs during or after a date between people who are in a relationship, gang rape, which involves several people, raping the victim, marital rape which has to do with the husband having sexual intercourse with the wife without her consent or by way of force.

 Incestual rape, which is the type of rape that involves family members, for example a father could rape the daughter or brother could rape the sister. Child sexual abuse, prison rape, acquaintance rape and war rape are also types of rape.

 Effects of rape
 Rape leads to both physical and psychological trauma.
 In the case of male on female rape, which is the most common type of rape, the
 physical effects can be broken down into the following:
 Gynecological
• Vaginal or anal bleeding or infections could occur after the incident.
• Virginal inflammation
• Dyspareunia: painful sexual intercourse
• Vaginismus: this is a condition which affects the woman’s ability to engage in any form of virginal penetration
• Chronic and pelvic pain
• Urinary tract infection
• Pregnancy: pregnancy is likely to occur from rape, as, often times, when rape occurs, there is the absence of the use of contraceptives. In 1982, a research done by the American society for reproductive medicine discovered that the risk of pregnancy during rape is the same for that of consensual encounter (2-4%).

 In 1996, there was a longitudinal study in the United States of America which discovered that among 4000 rape victims, 5.2% of rape among victims between the ages of 12-45 resulted in pregnancy each year.

 Another study done in 1991 in Lima, Costa Rica found that 90% of the new mothers between the ages of 16-19 years were pregnant as a result of rape or incest’ Similar researches have also been done in Ethiopia and Mexico where it was discovered that 17% and 18% of rape cases resulted in pregnancies respectively

 Meanwhile, any pregnancy resulting from an encounter with a stranger carries a higher risk of pre-eclampsia, that is the condition in which hypertension arises in pregnancy in association with significant amounts of protein in the urine’ This is a very dangerous condition that could lead to the death of the victim.

 *Sexually transmitted diseases: violence or forced sex can increase the risk of transmitting HIV forced vaginal penetration, abrasion and cuts commonly occur, thus facilitating the entry of the virus through the vaginal mucus. Adolescent girls are highly susceptible to HIV infection through forced sex, because their vaginal mucous membranes have not yet acquired cellular density sufficient to provide an effective barrier that develops in the later teenage years.

 Psychological Effects
• Self-blame: rape victims often blame themselves for the occurrence of rape, either believing that the incident was their fault through- something they did or did not do or there is something wrong with them which made them to be raped. This condition can be remedied by cognitive therapy.

• Shame: according to June Tangney’ shame is a result of rape and it has destructive effects like, lack of motivation to seek help, lack of empathy, cutting themselves off from other people, anger and aggression.

• Suicide: childhood and adulthood victims of rape are more likely to attempt or commit suicide’ The experience of being raped can lead to suicidal behavior’ In Ethiopia,6% of raped school girls reported having attempted suicide. They also feel embarrassed to talk about what has happened to them with anyone

• Sociological impact
 Rape is especially stigmatizing in cultures with strong customs and taboos regarding sex and sexuality. For example, a rape victim who was a virgin before the assault will be regarded as being damaged. afterwards. The rape victim could be isolated by friends and family, disowned or even divorced if the victim is already married. This phenomenon is known as secondary victimization.

 Secondary victimization is the re-traumatization of the sexual assault of the rape victim through the responses of individuals and organizations Rape is forbidden under Islamic law therefore, the victim is punished and accused of having sex outside marriage, local sharia courts often punish raped minors by flogging and beating with shoes, but this is not according to orthodox sharia law.

 In 1979, the government of Pakistan adopted the Zina ordinance to bring the penal code into accord with Islamic principles. Under this ordinance, the women who reported having been raped must prove that the intercourse was without consent. In a situation where they cannot prove it, they are charged with fornication. As a result, women are unlikely to report rape.

 Rights advocates say that this aspect of sharia law not only negates the rights of women but is also a misinterpretation of Islam.

 The effects of rape on a child are also as bad as on an adult, if not worse. The harm is both long and short termed. The short term effect includes, depression, post-traumatic stress disorders eating disorders, poor self-esteem, dissociative and anxiety disorders and general psychological disorders. Rape in children could also lead to chronic pain sexualized behavior, school/learning problems and behavioral problems such as substance abuse.

 From researches carried out so far, it has been discovered that the justice system in Nigeria tends to either shield the assailant or deny the victim justice for lack of evidence.

 TREATMENT OF RAPE CASES IN NIGERIA
 The Nigerian constitution and law do not give enough provision to ensure that rape victims get justice while assailants are convicted

 As mentioned earlier, rape is an offence punishable by the law In Nigeria. According to the criminal code, an offence is defined as, an act or omission which renders the person doing the act or making the omission liable to punishment under the criminal code or under any act or law The criminal code also explained that there are three types of offences namely felonies, misdemeanors, and simple offences.

 A felony is any offence which is declared by the law to be a felony or is punishable without proof of previous conviction, with death or imprisonment for three or more years.

 A misdemeanor is any offence which is declared by the law to be a misdemeanor or is punishable by imprisonment for not less than six months, but less than three years, while all offences other than felonies and misdemeanors are simple offences.

 In section 218 of the criminal code seriatim, unlawful carnal knowledge of a girl under the age of thirteen is a felony which is liable to imprisonment for life with or without whipping.
 Having established the fact that rape is an offence punishable by the Nigerian law earlier, it should be observed that before justice can be served on the assailant, the victim must be able to prove beyond reasonable doubt that not only was she raped, but she was raped by the accused person
.
 In other to meet up with this demand, the victim must have enough evidence to prove that there was carnal knowledge or penetration, and that it was done without her consent or with the use of force.

 The Longman Dictionary of Contemporary English defines evidence as facts or observations presented in support of an assertion while Faith O Osadolor Esq. in the Source Book on the Law and Practice of Evidence in Nigeria explains the following:

“Evidence is the existence of facts required for the proof of an issue”
Osadolor further stated that a person cannot be convicted for the following offences, listed in section 218,221,223, or 224 of the criminal code upon t uncorroborated testimony of one witness.

 First of all it is most unlikely that a rape incident would have a witness as rape is a personal attack on the victim and sexual activities are not usually done in public to the glare of witnesses, therefore, if the law states that the accused person cannot be convicted without the testimony of at least one witness, that shows that the law is unwilling to prosecute the accused person.

 Secondly, section 218 of the criminal code also states that prosecution for a person who has unlawful carnal knowledge of a person under the age of thirteen or attempted to do so must be begun within two months after the offence has been committed. In some cases, the victims might not come out on time to seek justice as a result of the fear of stigmatization. What this section of the law means is that anyone who wishes to raise a case against her assailant has an ultimatum of doing so within the space of two months or have a case as serious as rape flung out of the law courts because the case was not filed as early as possible.

 What if a person was assaulted at childhood and then decides to get justice after attaining adulthood? The Nigerian justice system states that such an individual cannot get justice because so many years have passed by. Is it ever too late to get justice? No matter the crime?
 Section 221 states that a person who, knowing a woman or girl to be an idiot or imbecile, has or attempts to have unlawful carnal knowledge of her is guilty of misdemeanor and is liable to imprisonment for two years with or without whipping.

 It will be observed that this section of the criminal code has drawn a divide between the rape of a normal woman and the rape of a mentally challenged person. rape has one and the same meaning for both the mentally stable and mentally challenged, it means defilement. It should be viewed as a more serious crime when it is done to a person who is mentally challenged because then, the act will be a calculated and well planned attack on the victim who is viewed as being unable to report the offence. In this case, two years imprisonment seems too little a price to pay for someone who meted out such a heinous crime on a fellow human being.

 This is not to say that some of the victims have not come up with evidences like torn under-wears, bruises to establish the fact that the intercourse was not consentual or even evidence that semen or other male fluids where found on the woman at the time the accusations were made.
But then, how can it be proven that the bruises were inflicted on the woman by that particular man or that the semen or body fluids found on the woman was actually from the accused?
 There are not many hospitals that are involved in DNA testing in Nigeria. Even at that, how long will it take for a DNA test to be carried out, to prove that the assailant is actually guilty of the crime? More so, a victim who does not have the funds to go the extra mile will have no other option but to have the case dropped for lack of evidence.

 SOLUTION AND RECOMENDATION
 Clauses that tend to protect the assailants should be removed from the criminal code. For example, a rape case does not require a witness before it can be considered. This is because, rape incidents hardly have witnesses and the absence of a witness would mean that the victim has been denied a fair judgment. The criminal code also states that prosecution can only take place if the victim does not have questionable character. This means that the law does not believe a prostitute can be raped. This goes contrary to the aspect which states that rape takes place if a person has unlawful carnal knowledge of a woman without her consent. In a case where the prostitute does not grant consent to the accused, it is believed that rape has taken place, so why will the law deny such a woman from getting justice on the grounds that she is a prostitute?
 Okonkwo and Naish also explained that it is no excuse that the person is a common prostitute or a concubine to the accused, as long as there was no consent, the incident can be regarded as rape and therefore should be treated as such.

 Secondly, I would suggest that all rape cases should be given a general sentence, which is life imprisonment, regardless of the mental status of the victim as the after effects of rape affect both the mentally stable and the mentally handicapped.

 Thirdly, marital rape should be given recognition in the Nigerian justice system because, rape also occurs between spouses and a situation where such is only regarded as assault not do justice to the fact that the woman was actually raped.

 CONCLUSION
 In conclusion, rape is a deadly crime committed against a woman, it has often times led to suicide or diseases that eventually lead to death. Rape is an incident that robs its victims of all forms of dignity and a reason for existence yet the justice system in Nigeria has been set up in such a way that it is almost impossible for the victim to get justice. For this reason, many rape cases go unreported and the victims who still believe in the justice system of Nigeria will have nothing but stigmatization as a reward the justice system in Nigeria has to be seriously reviewed regarding the way it treats rape cases as more criminals will continue to perpetuate such acts, knowing that there will be no punishment for them. Rape should be strongly fought and not encouraged. There should be some form of succour for the victim, as the judiciary is the last hope of the common man.