The Nigerian Senate has rejected an amendment that could have challenged a blind spot regarding marital rape in the Criminal Code Act.
During plenary on Tuesday, lawmakers passed the Criminal Code Act (Amendment) Bill, 2020, a bill that seeks to amend some sections of the Criminal Code Act.
The bill, first read in September 2019, was sponsored by Sen. Remi Tinubu (Lagos Central – APC), and was passed after the presentation of a report by the chairperson of the Senate Committee on Judiciary, Human Rights and Legal Matters, Sen. Opeyemi Bamidele (Ekiti Central – APC).
During the Second Reading of the bill in November 2019, Sen. Tinubu said the definition of rape in the Criminal Code Act perpetuates the socio-cultural belief that men do not need to consent to sexual acts.
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The bill passed, on Tuesday, removed the statute of limitation on defilement of minors, increases punishment for kidnapping, and removes gender restrictions in the offence of rape.
Clause 5 of the bill amends Section 357 of the Principal Act by replacing the words “woman or girl, without her consent, or with her consent”, with the words, “any person, without consent, or with consent”.
Clause 6 of the bill similarly amends another part of Section 357 of the Principal Act by replacing “in the case of a married woman, by personating her husband, is guilty of an offence which is called rape”, with the words, “in the case of a married man or woman, by personating his wife or her husband, is guilty of an offence which is called rape”.
Section 357 of the Principal Act currently reads, “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.”
The amendment bill, if signed into law, would change Section 357 to read as, “Any person who has unlawful carnal knowledge of any person, without consent, or with 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 man or woman, by personating his wife or her husband, is guilty of an offence which is called rape.”
During a clause-by-clause consideration of the bill, Senator Uche Lilian Ekwunife (Anambra Central – PDP), raised a motion to amend Clause 5 to include explicit prohibition of rape involving a husband and wife.
Section 6 of the Principal Act specifically excludes married couples from its definition of “unlawful carnal knowledge”, meaning it cannot be legally recognised in court that a husband raped his wife, or vice versa, even if consent was not provided.
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The section reads, “When the term “carnal knowledge” or the term “carnal connection” is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration.
“”unlawful carnal knowledge” means carnal connection which takes place otherwise than between husband and wife.”
Sen. Ekwunife urged the Senate to use the opportunity of the bill to recognise that rape can happen between a married couple.
“Mr. President, there’s marital rape in Nigeria.
“Yes, if you have carnal knowledge of a woman without her consent – a husband shouldn’t rape the wife,” she said.
A male lawmaker, who was inaudible in the background, seemed to disagree with her, prompting her to respond, “You see? You see the mentality.”
Senate President Ahmad Lawan (Yobe North – APC), said he did not think the amendment would make any difference, but called on Sen. Bamidele to shed light on the issue.
Sen. Bamidele said the legislative intent of the bill was to remove the gender-restrictive language to show that anyone of any gender could be a victim of rape in the eyes of the law.
He further argued that the “any person” in Clause 5 already covers those who are also married, noting that it is “much more comprehensive”.
“It even takes it (definition of rape) beyond carnal knowledge. Now, penetration is not only through the traditional means alone – it can even be through the mouth or anus, or any part of the body without consent,” he said.
However, since Section 6 of the Principal Act was not targeted for amendment in the bill passed, on Tuesday, the exclusion of married couples from the definition of rape will stand.
“To the extent that any proposed amendment does not touch Section 6, and does not change the unlawful aspect of the definition of rape, then it cannot have the effect of introducing the concept of marital rape to our law,” Orji Uka, a Lagos based legal practitioner, told Pulse.
When Lawan gave Senator Ekwunife a chance to either withdraw the amendment or move forward after Bamidele’s explanation, she insisted that ‘married or unmarried’ be added to the amendment.
Senator Abba Moro (Benue South – PDP) seconded her motion, but a majority of lawmakers voted against her amendment when Lawan put it to a voice vote, leaving the clause as originally recommended.
The ill-recognition of marital rape is a major talking point for activists who have been campaigning against the surge of sexual assaults in the country.
At least 717 rape cases were reported in police stations across Nigeria between January 2020 and May 2020.
Last month, all 36 state governors resolved to declare a state of emergency on rape and other gender-based violence against women and children after days of protests in many cities across the country.
The Criminal Code Act (Amendment) Bill, 2020 removes the statute of limitations which stipulated that cases of defilement of girls under 16 years of age must be prosecuted within two months after the offence is committed.
The bill also replaces with “mentally challenged” a section of the Criminal Code Act which forbade unlawful carnal knowledge of a woman or girl known “to be an idiot or imbecile”.
The bill will be forwarded to the House of Representatives for concurrence, and then forwarded to President Muhammadu Buhari to sign into law.
