Legal Palace

Of all kinds of sexual offences, the offence of rape is grave and weighs more. The offence of rape is one of the oldest crimes in human history. The law seeks to protect women and girls who are vulnerable owing to the fact that  they are weak in mind or body, or threatened and even intimidated. Rape which is one of the most common and serious form of sexual assault, is one that is found in all corners of the world. It is not peculiar nor limited to any village, ethnic group, state or country, though the rate of sexual assault or sexual misconduct in some countries are high and thus, these vulnearble individuals needs the protection of the law. This is akin to the sentence that “the law is the last hope of the common man.” The law must take steps to punish perpetrators of this heinous crime and deliver justice to the victims.

It is true that 70% of men have an Achilles hill for women, but there has been an ongoing debate over the years, if a man is capable of raping his wife. About 80% of the world’s population is of the view that a man cannnot be guilty of the offence of rape against the wife, whilst, 20% believe that a man can be guilty of the offence of rape against his wife and thus, he should be properly and adequately punished.

The position of the law

Rape was defined by the English dictionary as “the act of forcing sex upon another person without their consent or against their will; originally coitus forced by a man on a woman.”

To further streamline it to our Nigerian Law, the Nigerian Criminal Code in Section 357 elucidates on the offence of rape as follows;

“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 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.”

Hence the question;

Does a husband have the capacity to commit the offence of rape?

The Nigerian criminal code provides a clear, coherent and transparent answer to the question, with no ambiguity of any sort by stating in Section 6 that ‘a husband cannot be found guilty of the offence rape upon his wife.’ This is because unlawful carnal knowledge is defined as ‘carnal connection which takes place otherwise between a husband and wife.’ The law has been quick to point out in plethora of cases that a husband that is legally married cannot be guilty of the offence of ‘rape.’ This is akin to the reason that ‘‘the status of marriage invoves that the woman has given her consent to her husband having intercourse with her during the subsistence of the marriage…she cannot thus, unilaterally withdraw it.” As was held in the case of  R v. Roberts (1986) crim. L.R 188

Biblically, the bible also pointed out in 1 Corinthians 7:4 that “the wife does not have authority over her own body, but her husband does; likewise, the husband does not have authority over his own body, but his wife does.”

The wife on the day of the wedding gave the consent of sexual intercourse and cannot on her withdraw it. A husband cannot on this basis be guilty of the offence of rape against his wife. But this privilege is limited as a huband can be guilty of rape in the following circumstances;

     1. If the marriage has been dissolved

    2. If a court has made an order of seperation containing a clause that the wife is no longer bound to cohabit with her husband. ~ R v. Clarke

    3. An undertaking by a husband not to assault, molest or otherwise interfere with this wife has the effect of revoking the implied consent. ~ R v. Steele

Note: the mere petition for divorce does in itself revoke the implied consent to intercourse. As held in R v. Miller. Though a husband cannot be guilty of rape, he can be guilty of sexual assault against his wife.

©Henry Wanogho and Eberechi Justice 2023

For LEGAL PALACE