SPOUSAL RAPE IS RAPE: THE CAE FOR FULL CRIMINALISATION IN NIGERIA

ABSTRACT

This article examines the failure of Nigerian law to criminalise spousal rape. It argues that spousal rape is rape and the marital exemption has no legal or moral basis. The marital exemption is traced to Hale’s discredited doctrine and absorbed due to colonialism into Nigerian law. The Criminal Code, Penal Code and VAPP Act have failed to protect married women and must be reformed, the UK and South Africa have reformed their laws making this reform achievable in Nigeria. Nigeria has ratified CEDAW, UDHR, DEVAW and the Maputo Protocol, yet continues to maintain the marital exemption in violation of these obligations. Nigeria should criminalise spousal rape through legislative and judicial reform in order to conform with constitutional and international laws and ensure perpetrators are held accountable.

INTRODUCTION

The law has long recognised that no woman should be subjected to sexual violence, yet within the institution of marriage, that same law has historically looked away. A stranger who forces himself on a woman is a rapist; a husband who does the same has, for centuries, been a free man.

The Nigerian culture as a patriarchal society is one of the reasons for marital rape, this is a prevailing cultural norm that regards a woman as the husband’s property and as a result of this cannot deny her husband any form of sexual intercourse upon marriage. This has been incorporated in Nigerian criminal law, leaving married women without legal protection against sexual violence by their husbands.

Historically, marital rape has not been recognised as a criminal act, men who rape their wives have been exempted from legal punishment.

Sir Matthew Hale, in Historia Placitorum Coronae (1736), wrote that “a husband cannot be guilty of rape committed by himself upon his lawful wife, because by their matrimonial consent and contract the wife has given herself up to her husband which she cannot retract”.¹

According to Sec 357 of the Criminal Code “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.”²[1]

A married woman has no protection under Section 357 against rape by her husband. The law simply does not contemplate it as a crime, which is the same as the Penal Code (Northern Nigeria) where Sec 282 defines rape by explicitly stating it does not apply to sexual intercourse by a man with his own wife, provided she is not under 13 years of age.³

[2]

Even the Violence Against Persons (Prohibition) Act 2015 which is Nigeria’s most progressive legislation on gender based violence fails to expressly criminalise spousal rape.⁴

Marital rape is now a societal problem having its impact worldwide. Some countries like Israel, USA and UK have set their own legal norms to curb marital rape. In the United Kingdom, the House of Lords in R v R [1992] abolished the marital exemption, holding that a husband can be convicted of raping his wife.⁵

This demonstrates that it is legally, practically achievable to reform the laws on marital rape.

Spousal rape is rape, marital exemption should not be justified, and has no legal or moral basis, Nigeria should reform its laws and criminalise marital rape.

HISTORICAL ORIGINS OF THE MARITAL EXEMPTION

The marital exemption can be traced to the writings of Sir Matthew Hale, a 17th century English Jurist. He proposed that “The 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 unto her husband, which she cannot retract.”⁶ From Hale’s proposition, he regarded marriage itself as the act of consent, and this consent as permanent and irrevocable.

Under the English Common Law of the Doctrine of Coverture, a married woman had no separate legal identity from her husband.⁷ Upon marriage her legal existence is suspended and absorbed into her husband’s own. The woman cannot own property, enter into contracts, nor can she sue independently, this made it legally impossible for a husband to violate his wife’s right, because she had no right separate from her husband’s own, since a person cannot rape themselves, a husband could not logically rape his wife.[3]

The doctrine of Implied consent no longer exists, because consent must be freely given, ongoing and can be withdrawn at any time, this is universally recognized. The Doctrine of Coverture has been abolished, women now have independent rights. Similarly, the notion where the man and the woman are treated as one, which makes the man unable to rape the woman, does not have a sound legal basis. Hale’s Doctrine has been dismantled and left without any legal foundation upon which it can stand. Yet Nigerian law continued to apply this discredited doctrine long after its foundations had collapsed.

Nigeria was a British colony and inherited English common law principles through the Reception Clause in Nigerian legislation. The Criminal Code enacted in 1916 carried these principles into Nigerian law.⁸ The marital exemption was not debated upon, it came along as part of received English law. Several legal scholars criticised Hale’s Doctrine, because it was never tested judicially before being accepted as law, he presided over witch trials and he was deeply patriarchal.

Hale’s Doctrine was criticised based on social and religious norms of the 17th century England, it was never a sound legal reasoning. In the case of R v R [1992] the House of Lords described the Doctrine as a fiction that never reflected the law.⁹

Lord Keith of the House of Lords in R v R stated that the idea of irrevocable consent upon marriage was “a common law fiction which had never been a true rule of English Law.”¹⁰

THE CURRENT POSITION IN NIGERIA

In the definition of rape under Sec 357 of the Criminal Code, the word ‘unlawful’ serves as the legal loophole, sexual intercourse within marriage is presumed lawful.¹¹ Sec 6 of the Criminal Code defines unlawful carnal knowledge as carnal knowledge outside of marriage, which makes the exemption explicit when both sections are read together.¹²

The Criminal Code is applicable to Southern Nigeria, and no Nigerian court has successfully prosecuted a husband for raping his wife under the Criminal Code.

Unlike the Criminal Code where the exception is implied, the Penal Code makes it explicit. Sec 282 of the Penal Code defines rape and lists exceptions which states that sexual intercourse by a man with his own wife is not rape, provided she is not under 13 years of age,¹³ this means the only protection offered to a wife is the age threshold of 13, which results in the problem of child marriage.

The Violence Against Persons (Prohibition) Act 2015 VAPP criminalises domestic violence, sexual assault, female genital mutilation, forced marriage, and other forms of gender based violence.¹⁴ Sec 1 criminalises physical violence such as battery,¹⁵ Sec 3 deals with sexual assault broadly and carries stiffer penalties than the Criminal Code.¹⁶

The VAPP Act has its limitations as it does not explicitly use the term “spousal rape”, it does not explicitly abolish the marital exemption and it only has direct federal application in the FCT Abuja, states have to domesticate it before it applies to them.

Recently, only a handful of states have domesticated it which means most women are not covered. Even in states where the VAPP Act has been domesticated, prosecutors and courts are not clear on how to prosecute such cases because the law does not clearly criminalise spousal rape.

Under Nigerian Law, a married woman can own property independently. A married woman owning property independently proves that she is no longer treated as her husband’s property. Section 34 of the 1999 Constitution of Nigeria guarantees the dignity of the human person.¹⁷ Section 42 prohibits discrimination on grounds of sex.

The marital exemption violates both provisions,¹⁸ thereby rendering the marital exemption unconstitutional.

No Nigerian law protects a married woman from being raped by her husband.

COMPARATIVE ANALYSIS

Prior to 1992 English law followed the doctrine of Hale that a husband cannot be convicted for raping his wife, this marital exemption was treated as settled law.

In R v R [1992] 1 AC 599,¹⁹ the husband and wife were separated but still legally married, the husband forced himself sexually on the wife and was charged with rape and attempted rape, in his defence he argued marital exemption. The House of Lords unanimously rejected the exemption, Lord Keith held that marriage did not give a husband a right to have sexual intercourse without the wife’s consent. The Court declared Hale’s proposition a fiction that had never been a true rule of English Law. This decision was later affirmed by the European Court of Human Rights in CR v United Kingdom (1995).²⁰

Following R v R, the Sexual Offences Act 2003 codified the abolition of the marital exemption in statute.²¹ Sec 1 defines rape without any marital exemption, making it clear that a husband can be convicted of raping his wife. The reform in the UK came through judicial activism, the courts acted before parliament. This shows that even without legislation courts can dismantle the exemption where they have the will to do it.

In South Africa, common law recognised the marital exemption, influenced by Roman Dutch Law and English Common Law. A husband could not be convicted of raping his wife.

South Africa abolished the marital exemption through the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 commonly called the Sexual Offences Act 2007.²² Sec 3 defines rape in gender neutral terms that any person can be a perpetrator or victim, it explicitly states that no marital or intimate relationship constitutes consent to sexual intercourse. It covers all forms of sexual penetration, not just penile penetration.

South Africa’s law did not just criminalise spousal rape, it also provided support systems for victims, also ensuring that perpetrators be tested for HIV. Unlike the UK where reform came through courts, South Africa reformed through comprehensive legislation. Nigeria should emulate South Africa’s approach of using explicit and clear legislation to criminalise spousal rape, as it leaves no room for ambiguity. The UK shows courts can act even without legislation, South Africa shows comprehensive legislation is more effective and certain. Nigeria needs both judicial interpretation and legislative reform.

The language being ambiguous creates loopholes that perpetrators use to escape punishment.

Both the UK and South Africa have deeply entrenched marital exemptions, which are rooted in the same common law tradition as Nigeria. Both countries reformed successfully. South Africa did not just abolish the exemption — it created a comprehensive framework that supports survivors. Nigeria’s reform should go beyond criminalising spousal rape but should include and create systems to support the victim, judicial training and prosecution guidelines.

HUMAN RIGHTS FRAMEWORK

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was ratified in Nigeria in 1985. Article 2 obliges the elimination of discrimination against women in states.²³ Article 3 — women are primarily equal to men in every aspect of life, and it is the duty of states to ensure that women enjoy all fundamental rights and freedom.²⁴

Article 5 imposes an obligation upon states to abolish colonial practices which limit the rights of women and to take steps to eliminate stereotyping.²⁵ Article 16 guarantees equality in marriage.²⁶ CEDAW Committee General Recommendation No 35 (2017) specifically calls for criminalisation of marital rape.²⁷

The Declaration on Elimination of Violence Against Women (DEVAW) 1993. Article 2(a) of DEVAW 1993 specifically provides for considering marital rape as an offence against women.²⁸ Apart from these provisions, DEVAW also recommends that states develop their administration in a way that penalises perpetrators of violence against women. Article 4(d) states should develop penal sanctions in domestic legislation to punish violations committed against women.²⁹

International Covenant on Civil and Political Rights (ICCPR) 1966. Article 26 of ICCPR — the domestic law of member states should provide for equal protection of status and dignity to all citizens irrespective of their status or race.³⁰ This means laws that create discriminatory treatment between married and unmarried women concerning rape violate Article 26 of ICCPR.

International Covenant on Social, Economic and Cultural Rights (ICESCR) 1966 provides that state parties are to ensure that every person attains high standard of physical and mental health.³¹

Maputo Protocol ratified in 2004 in Nigeria, Article 4 prohibits sexual violence within marriage. Nigeria’s failure to criminalise spousal rape violates this directly.³²

African Charter was ratified in Nigeria in 1983, Article 4 provides for the right to integrity of persons,³³ Article 5 prohibits degrading treatment.³⁴

The Universal Declaration of Human Rights (UDHR) 1948 holds a proper place in the United Nations Charter. Article 3 of the Declaration states that everyone irrespective of their gender, age, mental status and other criteria has the right to life and liberty.³⁵

Marital rape should not be treated differently from rape, so that the right to life and liberty is not compromised.

The Nigerian Constitution Sec 34 provides for the dignity of human persons³⁶ and Sec 42 provides for freedom from discrimination.³⁷

Nigeria has ratified these instruments but still maintains its marital exemption which is violating its own international legal obligation. Domestic laws should be brought in conformity with international law without delay.

THE CASE FOR FULL CRIMINALISATION

Consent is the foundation of modern rape law. Consent must be given freely, ongoing, and can be withdrawn or revoked at any time. Marriage cannot and does not mean permanent consent to sexual intercourse. A woman does not surrender her right to say no because of marriage — consent given on the wedding day is not equal to every future sexual encounter.

What makes rape a crime is the absence of consent and not the identity of the perpetrator. When a husband forces himself on his wife without her consent, he commits the same violation as any other rapist.

The marital exemption creates two types of women under Nigerian law — married women who have no protection against rape by their husband and unmarried women who do. This is likened to discrimination, meanwhile Sec 42 of the 1999 Constitution prohibits discrimination on the grounds of sex,³⁸ Sec 34 guarantees the dignity of every person including the married and unmarried.³⁹ The marital exemption denies married women equal protection of the law. Constitutionally, no provision justifies stripping a woman’s right to bodily autonomy upon marriage.

Rape is a violation of human dignity regardless of whoever commits it and the law should recognise it. Spousal rape has the same effect and psychological harm as rape by a stranger. Research has shown that spousal rape survivors often suffer more severe long term trauma⁴³ because it is caused by someone they trusted. The failure of the law to recognise spousal rape as rape compounds the harm by denying survivors justice. Human dignity cannot be suspended because of marriage.

Total criminalisation serves necessary social and legal policy goals. It sends a clear message that marriage does not license sexual violence, it deters potential perpetrators, encourages survivors to report and seek justice, brings Nigerian laws into conformity with international standards and protects children from witnessing normalised sexual violence.

Total criminalisation is legally achievable and necessary. The UK and South Africa have demonstrated this reform to be possible and achievable. The VAPP Act demonstrates its legislative willingness to address gender based violence.

This article recommends the following reforms. First, amend Sec 357 of the Criminal Code to remove the word ‘unlawful’⁴⁰ and replace it with ‘intentional’, second, amend Section 282 of the Penal Code to remove the marital exemption⁴¹ entirely, third, amend the VAPP Act to explicitly criminalise spousal rape with clear penalties, fourth, state legislatures should be encouraged to domesticate the VAPP Act,⁴² fifth, establish specialised courts for sexual and gender based violence, sixth, provide training for judges and prosecutors on spousal rape cases.

CONCLUSION

Nigerian laws have failed to protect women from sexual violence by their husbands. This can be traced to Hale’s discredited doctrine, the legal fiction built on the false premise that marriage demands irrevocable consent. The UK and South Africa have demonstrated that Nigeria can reform its laws. Nigeria’s international obligations under CEDAW, UDHR, DEVAW and the Maputo Protocol demand full criminalisation. Spousal rape is rape — the identity of the perpetrator should not change the nature of the crime. Nigeria must act through legislative and judicial reform, and policy commitment to enable its laws to be in conformity with justice, equality and human dignity.

Rape is not less of a rape because the perpetrator shares a bed with the victim. Spousal rape is rape.

BIBLIOGRAPHY

TABLE OF CASES

CR v United Kingdom (1995) 21 EHRR 363

R v Clarke [1949] 2 All ER 448

R v Miller [1954] 2 All ER 529

R v R [1992] 1 AC 599 (HL)

LEGISLATION

Nigerian Statutes:

African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9, Laws of the Federation of Nigeria 2004)

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Criminal Code Act (Cap C38, Laws of the Federation of Nigeria 2004)

Penal Code (Northern Nigeria)

Violence Against Persons (Prohibition) Act 2015

Foreign Statutes:

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (South Africa)

Sexual Offences Act 2003 (UK)

INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217

Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13

Declaration on the Elimination of Violence Against Women (adopted 20 December 1993) UNGA Res 48/104

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 11 July 2003, entered into force 25 November 2005)

Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217A

BOOKS

Blackstone W, Commentaries on the Laws of England (1765) vol 1

Hale M, Historia Placitorum Coronae (1736)

Russell D, Rape in Marriage (Indiana University Press 1990)

COMMITTEE REPORTS AND RECOMMENDATIONS

CEDAW Committee, General Recommendation No 35 on Gender-Based Violence Against Women (2017)

[1] Matthew Hale, Historia Placitorum Coronae (1736).

[2] Criminal Code Act (Cap C38, Laws of the Federation of Nigeria 2004) s 357.

³ Penal Code (Northern Nigeria) s 282.[3]

4 Violence Against Persons (Prohibition) Act 2015

5. R v R [1992] 1 AC 599 (HL).

6. Hale (n 1).

7. William Blackstone, Commentaries on the Laws of England (1765) vol 1, 442.

8.Criminal Code Act (n 2).

9. Rv R (n 5).

10.ibid.

11. Criminal Code Act (n 2).

12. Criminal Code Act (n 2) s 6.