Spousal rape: What the law says

Rape is defined as a crime of forcing a woman or girl to have sex, especially using violence and it is one of the oldest crimes in the world. Traditionally, rape could only be committed outside marriage, and courts did not apply the rape statutes to acts of forced sex between spouses because it was […]

Rape is defined as a crime of forcing a woman or girl to have sex, especially using violence and it is one of the oldest crimes in the world.

Traditionally, rape could only be committed outside marriage, and courts did not apply the rape statutes to acts of forced sex between spouses because it was generally believed that a woman consented to all future sexual activity with her husband through the contract of marriage.

For many cultures in Nigeria, the idea of marital rape is foreign, something imposed and that which contradicts the belief that such matters should be dealt with privately rather than by the government.

Daily Trust gathered that marital rape is not an offence in Nigeria hence it is not prosecutable. 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, which she cannot retract.

It is therefore not surprising that in Nigeria today, there is no known case of a husband who is charged to court for marital or spousal rape.

However, some lawyers believe that the husband should obtain consent from the wife before every intercourse, while others believe that there is an implied consent on the side of the wife resulting from marriage which gives the husband a ready-made or automatic consent.

This is the confusion and it is hoped that the courts will have an opportunity in future to look at decisions on the issue.

According to Nwogugu in “Family Law in Nigeria”, “The parties to a marriage owe each other a duty to consummate it”. One of the grounds for dissolution of marriage under Section 15(1) of the Matrimonial Causes Act states: “A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably”.

Section 15(2)(a) of the above law provides one of the conditions that will prove this fact as it states: “that the respondent has wilfully and persistently refused to consummate the marriage”.

Therefore, the fact that a spouse has wilfully and persistently refused to consummate the marriage is enough for the court to dissolve it.

According to Edikan Ekanem, a spouse’s right to sexual intercourse must be reasonably exercised, and with due regard for the health and the disposition (mood) of the other spouse.

“While a duty exists to have sexual relations, a spouse is not obliged to summit to excessive sexual demands of the other party which may for instance, be detrimental to the party’s health,” Edikan Ekenem said.

English jurist, Sir Matthew Hale (1609-1676), stated the position of the common law in ‘The History of the Pleas of the Crown (posthumously, 1736)’ that a “husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband which she cannot retract”.

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.

In the Penal Code, Section 281(1) provides that: “A man is said to commit rape who… has sexual intercourse with a woman in any of the following circumstances – (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; (e) with or without her consent, when she is under 14 years of age or of unsound mind.”

Similarly, under the Penal Code, there is no offence of marital rape, provided the wife has attained the age of puberty.