The thrust of this article is to educate the reader on the protection afforded females against sexual abuse under the Nigerian Criminal law regime.

The primary law that would be considered is the Criminal Code Act, which is applicable to the southern part of Nigeria only. The position of the law in substance is almost the same in the south and the north, though there may exist slight variations in the law.

It is generally thought that the protection afforded females against sexual abuse is the protection against rape only. While it is true that the law protects females generally against rape which in itself is a form of sexual abuse, it is erroneous to think that there exists no other protection for the female against other forms of sexual abuse.

This article will therefore examine the other forms of protection afforded females against sexual abuse under the law.

WHAT IS SEXUAL ABUSE

Sexual Abuse under the Violence Against Persons (Prohibition) Act 2015 is said to mean any conduct which violates, humiliates or degrades the sexual integrity of any person.[1]

Sexual abuse in the broadest of terms refers to all kinds of non-consensual sexual contact. It is non-consensual if the victim does not consent to the sexual activity, or if the victim’s consent was obtained by the use of threat, intimidation or coercion. Sexual abuse is a broad term used to cover every form of non-consensual sexual act engaged in or carried on with a person. It could take several forms.

DEFILEMENT OF GIRLS UNDER THIRTEEN

Section 218 of the Criminal Code Act provides that any person who has unlawful carnal knowledge of a girl under the age of thirteen is guilty of a felony and is liable to imprisonment for life with or without caning.  While an attempt to have carnal knowledge of a girl under thirteen is punishable with fourteen years imprisonment.

However, it is important that prosecution for either defilement of the girl or an attempt to defile the girl is commenced within two months after either of the offences are committed if not, the accused person can no longer be prosecuted.

If an offence of this nature occurs, it is important to remember that time begins to run from the day the offence was committed, it is therefore important to lodge a complaint with the police immediately and request that prosecution be commenced as soon as practicable.

There exist some variations in terms of the age of the girl and time within which prosecution ought to be commenced in some of the laws of the states.  However, the substance of the offence still remains the same.  

The position of the law in Lagos State is the same under the Criminal Code Act.

Under the Criminal Code Law of Ogun state, the relevant age is below eleven as opposed to below thirteen stated under the Criminal Code Act. The punishment and time within which prosecution should be commenced are the same under both laws.

The position is different under the Delta State Laws.  Section 218 of the Delta State Criminal Code Law does not state a time limit within which prosecution should be commenced and the relevant age is below eleven.  This means that if a girl below eleven is defiled in Delta State, the accused can be prosecuted two years after the crime was committed unlike in Lagos or Ogun State.

The offence of defilement of a girl under thirteen or eleven (depending on the laws of the state) is a very serious offence, it is immaterial whether the girl gave her consent or not as she is deemed under the law as being incapable of consenting. The offence of defilement of young girls is complete upon penetration no matter how slight.[2]

The offence of defilement is the same thing as rape, the difference lies in the age of the victim.

PERMITTING DEFILEMENT OF YOUNG GIRLS

The law also imposes sanctions on any person who being the owner or occupier, or who has or who is assisting in the management or control of any premises permits a young girl to be in that premises for the purpose of being unlawfully carnally known by a man. The punishment of such person is dependent on the age of the girl.

If the girl has attained the age of thirteen but is below sixteen, then the person who permitted her to be on his premises for the purpose of her being abused is liable to imprisonment for two years with or without caning. Where the girl is under the age of thirteen, he is liable to imprisonment for life without caning.[3]

DEFILEMENT OF GIRLS UNDER SIXTEEN, ABOVE THIRTEEN AND OF IDIOTS

Any person who has unlawful carnal knowledge or attempts to have unlawful carnal knowledge of a girl of thirteen or above thirteen, but under sixteen years of age is liable to imprisonment for two years with or without caning.

Also, any person who knowing a woman or a girl to be an idiot or imbecile still goes ahead to have unlawful carnal knowledge of her or attempts to do so is liable to imprisonment for two years with or without caning.

Prosecution for any of these offences must be commenced within two months of the commission of the offence, failure to commence prosecution within two months of the commission of the offence means that the accused person can no longer be prosecuted for the offence.

INDECENT TREATMENT OF GIRLS UNDER SIXTEEN

The law frowns upon dealing with girls unlawfully and indecently. It is a crime to deal with a girl in an unlawful and indecent manner. The law has defined the phrase “deal with” to include doing any act which if done without consent would constitute assault.[4]

The law also provides that any person who unlawfully and indecently assaults a woman or girl is liable to imprisonment for two years.[5]

Assault under the Criminal Law means to strike, touch, move, or otherwise apply force of any kind to the person of another whether directly or indirectly without his consent or with his consent if the consent is obtained by fraud. It also extends to instances where a person by any act or gesture attempts or threatens to apply force of any kind to the person of another without his consent , in such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose.

The phrase “applies force” includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever, if applied in such a degree as to cause injury or personal discomfort.[6]

The broad definition of assault under the law makes it possible to bring the different forms of sexual abuse against females under this section. Thus sexually abusive acts like touching the genitalia of a girl, coercing and exposing her to pornographic materials, kissing and all such acts are prohibited and punishable under the law.

Where the girl is under the age of thirteen, the accused person is liable to three years imprisonment if found guilty and where the girl is under the age of sixteen, the accused person is liable to two years imprisonment.

CAUSING OR ENCOURAGING THE SEDUCTION OR PROSTITUTION OF A GIRL UNDER SIXTEEN

 Any person who has custody, charge or care of a girl under the age of sixteen and causes or encourages the seduction, unlawful carnal knowledge or prostitution of or the commission of an indecent assault upon such a girl is liable to imprisonment for two years.[7]

A person will be deemed to have contravened this law if he knowingly allowed her to associate with or to enter into or continue in the employment of any prostitute or person of known immoral character.

Guardians and parents of girls who are below sixteen therefore have to be careful, as negligence in controlling whom their wards or children associate with or work for can create criminal liability on their part.

ALLOWING PERSONS UNDER SIXTEEN TO BE IN BROTHELS

Any person who having custody of a child or young person who has attained the age of four, but who is under the age of sixteen, allows such a child or young person to reside in or frequent a brothel, such a person is liable to a fine of one hundred naira (#100) or to imprisonment for six months or to both such fine and imprisonment.

Liability here arises because allowing such a child reside in or frequent a hotel is tantamount to exposing the child to sexual immorality which is also a form of sexual abuse of the child.

PROCURATION FOR UNLAWFUL CARNAL KNOLWEDGE OR PROSTITUTION

The law criminalises the following acts:

  • Procuring a girl or woman under the age of eighteen to have unlawful carnal connection with any other person or persons either in Nigeria or elsewhere;
  • Procuring a woman or girl to become  a common prostitute either in Nigeria or elsewhere
  • Procuring a woman or girl to leave Nigeria with intent that she may become an inmate of a brothel elsewhere and;
  • Procuring a woman or girl to leave her usual place of abode in Nigeria with intent that she may for the purposes of prostitution become an inmate of a brothel either in Nigeria or elsewhere.

The punishment for either of the offences is two years imprisonment.[8]

This section is aimed at prohibiting the trafficking of women for prostitution whether within or outside Nigeria.[9]

PROCURING DEFILEMENT OF WOMEN BY THREAT, FRAUD OR DRUGS

 It is common these days to hear of Date rape, and also of the drugging of women by men they trust or men whom they are intending to date, or men whom they simply hung out with. It is also becoming rampant these days for Undergraduates to administer drugs to women in order to stupefy or overpower them so that they can have unlawful carnal knowledge of these unsuspecting women.

The law envisaged the occurrence of these and made provisions for such cases. The law criminalises the following acts:

  • The procurement of a woman or girl through the use of threats or intimidation of any kind, for her to have unlawful carnal connection with a man either in Nigeria or elsewhere;
  • Procurement of a woman or girl by false pretences for her to have unlawful carnal connection with a man in Nigeria or elsewhere
  • Administering to a woman or girl or causing a woman or girl to take any drug or other thing with intent to stupefy or overpower her in order to enable any man have unlawful carnal knowledge of her.

The punishment for either of the offences is two years imprisonment.

Under the Violence Against Persons (Prohibition) Act, if any person administers a substance to or causes a substance to be administered to or taken by another person with the intention of stupefying or overpowering that person so as to enable any person to engage in a sexual activity with that person, he is liable to not more than ten years imprisonment or to a fine of five hundred thousand naira (#500,000) or to both imprisonment and fine.

ABDUCTION OF GIRL UNDER EIGHTEEN WITH INTENT TO HAVE CARNAL KNOWLEDGE

The law prohibits the taking away, or the causing of the taking away of an unmarried girl under the age of eighteen from the custody or protection of her father or mother, or of any other person taking charge of her and against the will of her father or mother or of the person taking charge of her with the intent that such unmarried girl may be unlawfully carnally known by any man.[10]

The punishment for this offence is imprisonment for two years.

The law also prohibits the unlawful detention of a woman or girl against her will in any premise or in a brothel against her will with intent for her to be unlawfully carnally known by any man. The offence is punishable with two years imprisonment.

CONSPIRACY TO DEFILE

Any person who conspires with another to induce any woman or girl by means of any false pretence or other fraudulent means, to permit any man to have unlawful carnal knowledge of her is guilty of an offence and liable upon conviction to three years imprisonment.[11]

RAPE

A woman or girl can be said to have been raped if all of the following occur;

  1. A person has unlawful carnal knowledge of her;
  2. It was done without her consent;
  3. Even if her consent was obtained, it was obtained 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
  4. Or in the case of a married woman by personating her husband.[12]

The above ingredients must be present before it can be said that a woman or girl has been raped.  Rape is punishable with life imprisonment with or without caning, while attempted rape is punishable with fourteen years imprisonment with or without caning .This is the law on rape as it stands in virtually all of the states of the federation; however, the definition of rape has been expanded by the Violence Against Persons (Prohibition) Act 2015. It must however be stated that the Violence Against Persons (Prohibition) Act 2015 is only applicable to the Federal Capital Territory Abuja.

Under the Act, a person is said to have committed the offence of rape if –

  1. He or she intentionally penetrates the vagina, anus, or mouth of another person with any other part of his or her body or anything else;
  2. The other person does not consent to the penetration;
  3. 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.[13]

I would highlight in numbered paragraphs the novelty introduced by the Violence Against Persons (Prohibition) Act 2015:

  1. The law recognises that rape can occur when a woman’s anus, mouth or any other part of her body is penetrated, as opposed to the former position which recognised only penetration of the vagina.
  2. The law also recognises that rape can be said to have occurred if the penetration occurs with the use of the rapist’s sexual organ, finger, or any part of his body at all  or any object whatsoever. This is an expansion of the former position under the general law on rape which only recognised the penetration of the vagina with the man’s sexual organ. A person who penetrates the body of any woman or girl with any instrument whatsoever will be deemed to have raped her.
  3. Another novelty introduced by this law is that it recognises that a female can be raped by   another female.

The punishment for rape under both the criminal Code Act and the Violence Against Persons (Prohibition) Act is life imprisonment. However, under the Violence Against Persons (Prohibition) Act, where the rapist is below fourteen years of age, he is liable to a maximum of fourteen years imprisonment, and where the rape is committed by a group of persons, the offenders are liable jointly to a minimum of twenty years imprisonment without the option of fine.

 A rape victim under the Violence Against Persons (Prohibition) Act can also get financial compensation in certain circumstances.

As has been earlier stated, the only drawback of this Act is its limited application; it applies only to the federal Capital Territory Abuja.

As much as it might be argued that there exists plenty of room for the improvement of our laws to meet the present day realities of the society, it also remains a fact that the law has made some attempts at protecting the female from sexual abuse in its varying forms. Victims of sexual abuse, their friends and family, law enforcement agencies and the society at large owe the victims and the society the obligation of ensuring that sexual abusers are brought to justice as this has the threefold benefit of achieving justice for the victim, the state and highlighting areas of reform for the law.


[1] Section 46

[2] State V. Anyaneji (1998) 1 LRCNCC

[3] Section 219 of the Criminal Code Act

[4] Section 222 of the Criminal Code Act

[5] Section 360 of the Criminal Code Act

[6] Section 252 of the Criminal Code Act

[7] Section 222A of the Criminal Code Act

[8] Section 223 of the Criminal Code Act

[9] This will be elaborately treated in a subsequent Article.

[10] Section 225 of the Criminal Code Act

[11] Section 227 of the Criminal Code Act

[12] Section 357 of the Criminal Code Act

[13] Section 1 of the Violence Against Persons (Prohibition) Act 2015