Introduction:
Marital rape is a non-consensual sexual intercourse with one’s spouse. In most cases, it will be the husband having sexual intercourse without the wife’s consent. Being a despicable act, the consequences of rape and marital rape are associated with fear, depression, and other life traumatic experiences.
In Nigeria, the offence of rape is encapsulated in the Criminal Code (applicable to the Southern States) and the Penal Code(applicable to the Northern States). It is worthy of note that both statutes have similar features on this issue. According to Section 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 threat or intimidation of any kind or by fear or 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 impersonating her husband, is guilty of rape”.
Furthermore, there was a law that came into force in 2015. It is known as The Violence Against Persons [Prohibition] Act 2015(VAPPA). This law also touches on the issue of domestic violence. Fortunately, unlike the Criminal and Penal Codes, it widens the scope that both genders are capable of committing the offence of rape. In addition, it extends rape to any penetration of any opening in the body of a victim and with anything. Now there is no need to prove rape only by penetration of the vagina with the penis since penetration of any opening in the body (including, mouth and anus,) now suffices. Unfortunately, it was silent on the issue of marital rape.
The notion that a husband cannot be guilty of rape upon his wife is predicated on the then generally accepted view of the Common Law. It was based on a theory articulated by Mathew Hale, Chief Justice in England in the 18th century who wrote in 1736 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. This is known as the Hale Theory of Implied Consent. Also, there is the Theory of Oneness which has its root in the Bible. It states that a husband and his wife are one and inseparable making it impossible to rape oneself.
In Nigeria, the ugly picture painted through the concept of bride-price has made the majority of people see a wife as a property bought by his husband who subsequently has hegemony over her in all spheres. The effect of Lord Hale’s pronouncement is that upon entering marriage, there is an implied consent to sexual intercourse and it is inconsequential whether the wife wants it or not.
THE WAY-OUT
In Nigeria presently, there are no reported cases of marital rape. The reasons for this are not far fetched. In Africa and mostly Nigeria, a mother will rather choose to stay in an abused home and take care of her children rather than report a marital rape case. Other factors also include societal shame and stigmatization, ignorance, and fear of the perpetrator’s reprisal.
Unfortunately, this is the law until it will be changed. Marital rape is not an offence in Nigeria which a punishment is attached. As such, marital rape in Nigeria is a wrong without a remedy. This has made some vile men to hide under the cloak of this ‘protection’ to perpetuate this ignoble act.
However, if a victim (woman) is bent on taking legal actions against her husband, she can decide to bring an action for sexual assault
This is still very traumatic, Please seek a counselor who understands abuse dynamics and marital rape. It is better to see a counselor on your own to work through what you’ve experienced and decide how you want to handle it. Safety is a prerequisite to a healthy marriage and a healthy sex life.
