It has become imperative to write on the protection afforded males under the Nigerian Law as sexual abuse of males is now on the increase. This in itself is disheartening, however the ignorance of a large percent of the populace of the protection afforded males under the law is even more disturbing.
The ignorance of the protection afforded males under the Nigerian Law is not unconnected to the fact that our laws recognise that only females can be raped, not until the position was altered by the coming into force of the Violence Against Persons (Prohibition) Act, (VAPP Act ). Rape in itself is just one of the forms that sexual abuse takes, sexual abuse takes many forms. If a male cannot be protected by the section of our law which criminalises rape, he can be protected under another head of the law.
The law ought to keep pace with society’s advancement and needs, when the law fails to do this, it becomes obsolete and loses relevance. The law on rape needs to keep pace with the realities of society; that reality is that men too can be raped. Though the position has been altered by the Violence Against Persons (Prohibition) Act 2015, there still remains a challenge; the Act is only applicable to the Federal Capital Territory Abuja. There is therefore need for a law on rape which can protect men against rape throughout the whole of Nigeria.
This notwithstanding, there exists some measure of protection afforded males under the law; though the adequacy of the protection is very much debatable.
WHAT IS SEXUAL ABUSE
Sexual abuse generally refers to any kind of non-consensual sexual contact. It refers to any sexual activity that a person engages in as a result of the use of threat, intimidation or coercion used by the abuser on the victim.
The Violence Against Persons (Prohibition) Act 2015 defines sexual abuse to mean any conduct which violates, humiliates or degrades the sexual integrity of any person.
Sexual abuse could take several forms, but our law recognises only a few of them as the law on sexual abuse especially of males is highly underdeveloped in Nigeria.
CAN A MAN BE RAPED?
The popular view held by society now is that a man can be raped and this accords with the realities of what is going on in the society today.
Formerly under our laws, the position was that a man could not be raped; this position has been modified greatly by the coming into effect of the Violence Against Persons (Prohibition) Act 2015. The Act expanded the definition of what constitutes rape. It must however be noted that the Act has a very limited application; it does not apply to the whole of Nigeria but to the Federal Capital Territory Abuja only. For this reason, the position of the law on rape under the Criminal code which reflects the law on rape in the whole of Nigeria and the position of the law on rape under the Violence Against Persons (Prohibition) Act 2015 which reflects the current position in the Federal Capital Territory Abuja, would be considered.
Under the Criminal Code Act, a male cannot be raped either by another male or even by a female. The implication of this is that if a person, (the rapist/abuser) with the use of threat or force and without the consent of his victim penetrates his victim’s anus with his sexual organ or an instrument, in the eyes of the law the man has not been raped. The victim can seek no relief under the criminal law for rape nor can the abuser be tried or even punished for committing the offence of rape.
The Nigerian law on rape (with the exception of the Federal Capital Territory Abuja) as it stands now clearly states that only women or girls can be raped. Therefore a male outside the Federal Capital Territory Abuja cannot be considered to have been raped under both the Criminal Code Act and the Penal Code Act.
As has been earlier stated, the position is different under the Violence Against Persons (Prohibition) Act. The Act recognises that males can be raped.
Under the Act, a person commits the offence of rape if-
- 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;
- The other person does not consent to the penetration;
- 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.
The following can be deduced from the law
- A man can be raped
- The rapist can be either a man or a woman
- The offence of rape is complete upon the penetration of the anus or even mouth of the male victim by the rapist with any other part of his body or anything whatsoever. This means that the penetration of the anus or mouth of the male victim with any kind of instrument or object qualifies as rape.
- The hallmark of rape is the absence of consent; thus once the victim does not consent, or his consent is obtained by force, threat, intimidation, or by fear of harm, or false or fraudulent misrepresentation as to the nature of the act, or as a result of the use of any substance or additive capable of taking away the will of such a person or in the case of a married person by impersonating his spouse, then the act could qualify as rape.
- A male rape victim now has a remedy in law against his abuser.
The punishment for rape under the Act is life imprisonment and where the offender is less than fourteen years of age the punishment is imprisonment for not more than fourteen years. Where the rape was carried out by a group of persons, the offenders are jointly liable to imprisonment term of not less than twenty years without an option of fine. A rape victim can in certain circumstances also get financial compensation.
We will now consider other forms of protection afforded males under the Nigerian criminal law.
The Criminal Code Act is the primary criminal law legislation that states what constitutes crimes in the Southern part of Nigeria, its equivalent in the North is the Penal Code Act. Virtually all the states of the federation have their own Criminal Code law, but it is very similar in content to the Criminal Code Act. The provisions of the Act would be considered to determine the extent of the protection it affords males in Nigeria.
Section 214(1) of the Criminal Code Act provides that “any person who has carnal knowledge of any person against the order of nature is guilty of felony and is liable to imprisonment for fourteen years”.
The provisions of section 214(1) of the Criminal Code Act which is similar to section 81(1)(a) of the Armed Forces Act has been recognised by the Supreme Court as criminalising Sodomy. It is apt to reproduce the pronouncement of the Supreme Court on this point. The Supreme Court while stating what amounted to sodomy stated as follows:
In my respectful view, by putting or inserting his penis into the anus of the pw1, it amounts to having carnal knowledge of him and this act is against the order of nature and therefore amounts to the said offence of sodomy………
If any man is guilty of this type of offence, though he cannot be prosecuted for the offence of rape, (Except under the Violence Against Persons (Prohibition) Act) he can be prosecuted for the offence of sodomy.
This is a laudable provision as it affords some kind of protection to men against sexual abuse by their fellow men.
The punishment for sodomy is 14 years imprisonment, while an attempt to commit the offence of sodomy carries a 7 year prison term.
INDECENT TREATMENT OF BOYS UNDER FOURTEEN YEARS
Section 216 of the Criminal Code Act states that “any person who unlawfully and indecently deals with a boy under the age of fourteen years is guilty of a felony and is liable to imprisonment for seven years”. The law went further to state that the term “deal with” includes doing any act which, if done without consent would constitute an assault.
The provision of this section is wide enough to accommodate a wide range of acts which constitute sexual abuse. This section is also wide enough to accommodate sexual abuse perpetrated by both females and males on young boys below the age of fourteen.
Acts which can come under this section include but is not limited to; touching the boy’s genitals, the abuser forcing the child to touch his own genitals, indecent touching of the boy’s body, or the abuser compelling the child to touch his or her own body, (whether clothed or not) engaging in sexual activity in the presence of the child, compelling the child to watch pornography or read pornographic materials, kissing e.tc.
As earlier stated the punishment for indecently dealing with a boy under 14 years is an imprisonment term of 7 years.
INDECENT ASSAULT ON MALES
Section 353 of the Criminal Code Act provides that “any person who unlawfully and indecently assaults any male person is guilty of a felony and is liable to imprisonment for 3 years.
This section covers both adult males and male children. This section is also wide enough to cover a wide range of acts which constitute sexual assault. Thus any kind of unwanted and unsolicited touching, which does not accord with decency, is punishable under this section.
ASSAULT WITH INTENT TO COMMIT UNNATURAL OFFENCES
Section 352 of the Criminal Code Act also provides that “any person who assaults another with intent to have carnal knowledge of him or her against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years.”
Assault is broadly defined in the law as follows
A person who strikes, touches, or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent or with his consent, if the consent is obtained by fraud or who by any bodily 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 has actually or apparently a present ability to effect his purpose, is said to assault that other person and the act is called an assault.
The section further states that the term “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.
When a person assaults another with the intent of having carnal knowledge of the person, the abuser is liable to a term of fourteen years imprisonment. The broad definition of assault in the law makes it possible for the section to accommodate assault of a sexual nature irrespective of the instrument used to cause injury or discomfort to the victim by the abuser.
UNLAWFUL SEXUAL INTERCOURSE WITH A CHILD
This is applicable to children only and not the adult male.
Under the Child’s Right Act, a child is defined as a person under the age of eighteen years.
Section 31 of the Child’s Right Act prohibits any person from engaging in sexual intercourse with a child. Any person who engages in such intercourse with the child is deemed to have committed the offence of rape and liable to imprisonment for life if convicted. The section further provides that it is immaterial that the child consented or that the person thought the child has attained eighteen years or is above eighteen years.
OTHER FORMS OF SEXUAL ABUSE AND EXPOITATION
Section 32 of the Child’s Right Act also provides that a person who sexually abuses or sexually exploits a child in any manner not already mentioned under the Act commits an offence and a person who commits an offence under this section is liable on conviction to imprisonment for a term of fourteen years.
This provision is very elaborate as it can accommodate any act whatsoever which amounts to sexual abuse or sexual exploitation of the male child. Examples of acts which can come under this section include but is definitely not limited to; child prostitution, child trafficking for prostitution, child pornography, indecent sexual assault e.tc. The list is endless.
It is evident from the foregoing that
the law provides some measure of protection against sexual abuse in its varying
forms for the males, this however does not obliterate the need to broaden the
scope of the protection currently afforded males under the law.
 Section 46
 Section 1 of the Violence Against Persons (Prohibition) Act 2015
 Per Ogbuagu J.S.C in Major Bello M. Magaji V. The Nigerian Army (2008) LPELR- SC.204/2004
 Section 252