By Rachael Ayorinde.
Still on the issue of rights under the Nigerian Law, one very important question that begs for an answer is
‘Whether a wife can successfully sue her husband on the grounds of rape and assault?’
This comes up for consideration in a scenario such as this: Where he keeps beating his wife. She feels wronged but thinks there is nothing one can do about it.
Here is something, such a man can be sued successfully for the offence of assault.
If you are in an abusive relationship and you do not do something about it, you are endangering yourself. Violent behavior towards one another is wrong no matter who does it and family members are not exempted!
WHAT THEN IS ASSAULT?
The Criminal Code Act, which is applicable to Southern States in Nigeria, in section 252 explains ‘Assault’ to occur when:
“A person strikes, touches, 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 or threat has actually or apparently a present ability to effect his purpose.”
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.
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law. Instances when assault can be justifiable are included in the Criminal Code and the instance of husbands beating up their wives is not included.
On this premise, therefore, a woman can successfully sue her husband on the ground of assault and be sure to win the case if she can support her claim.
It is possible to sue one’s abuser in a civil action for injuries inflicted. Thus, assault can be actionable both as a crime and as a tortuous wrong which is civil.
Now that it is established that assault that occurs between parties in a marriage can lead to civil and criminal liability, it is pertinent to consider what the Law says on marital rape.
Section 357 of the Criminal Code Act defines ‘rape’ in the following words:
“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 ingredients for establishing rape gleaned from the definition of rape given above are the elements of carnal knowledge (substitution for sexual intercourse) which must be unlawful, penetration and lack of consent.
The punishment prescribed by Law is that a person who commits rape is liable to imprisonment for life, with or without caning.
I actually used to think that a woman should be able to sue her husband for raping her since it is against her will. However, that bubble of mine has been bursted by my realization that a wife can not sue her husband for rape in Nigeria. This is seen from the provision of section 6 of the Criminal Code Act, which states that ‘unlawful carnal knowledge’ means carnal connection which takes place otherwise than between husband and wife.
Thus, marital rape is not recognized by the Law.
It has been an age-long contention and it, apparently, is still one being contended that a woman can claim that her husband had sexual intercourse with her without her consent. In fact, it seems unheard of in some places that a woman will refuse her husband permission to have sexual intercourse and even more preposterous that she will choose to pursue a claim against her husband for that in a court of Law.
Since 1799 Hume expressed the view that a husband is immune from prosecution of his wife. Sir Matthew Hales, a 17th century jurist, posits that:
“but 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 herself up in this kind unto her husband which she cannot retract.”
In Northern Nigeria, the Penal Code defines rape in section 281(1) and in section 282(2), it is stated explicitly that:
“Sexual intercourse by a man with his own wife is not rape if she has attained to puberty.”
From the provisions of the criminal law in Nigeria, it is seen that marital rape is not an offence and thus, it is not actionable.
This state of our law is in dire need of reconsideration.
It should be no news to us that marital rape has been criminalized in countries such as Canada, New Zealand, France, Germany, Ghana, Sierra Leone, some states in the U.S.A, to mention but a few. In fact, The United Nations High Commissioner for Human Rights published in 1993 the Declaration on the Elimination of Violence against Women making marital rape and assault to be recognized as a violation of human rights.
Now I do not want you to write off this article as a work tainted with feminism. The aim of this article is inform women of their right that has been forgotten due to cultural beliefs. Thus, one has the right to stand up for oneself. It should be remembered that no one is above the law. Enough of hearing people hide under the cultural belief that it is a taboo for a woman to send her husband to prison.
Wives are humans too and they deserve to be treated with respect. The same goes for husbands.
Marital rape has not been considered from the perspective of the wife raping the husband because the issue of male rape is even still novel in Nigeria and one which requires complete consideration on its own.
It is recommended that our laws in this area, and in many more areas, should catch up with modern day realities seen in everyday situations