Yara Blog


THE RAPE CHRONICLES – A Place for Date Rape?


Friday, August 24th, 2012  

Date rape is the common term for non-consensual sexual (vaginal, anal, oral) intercourse that is forced (by way of physical force or

psychological coercion) on a person by someone that they know. Date rape is a complex and difficult area of criminal law, given the nature of the relationship between the victim and the accused.  However, most jurisdictions like ours, make no legal distinction between date rape and rape. This is even though it is well known that rape occurs far more often between people already acquainted than between strangers.

(Date) Rape cases may also take the form of emotional or financial coercion as opposed to the regular physical coercion. Where the rapist is placed in a higher position, he may use his position to harass and intimidate a woman to succumb to his sexual demands. By instilling fear through threats, a woman in that circumstance who succumbs can hardly be said to have given her consent. Where the rapists threatens to withhold or refuse promotions, money, examination results or anything due to the victim, the eventual intercourse would also fall under the heading of rape. In these cases, there will be no form of physical evidence. Our Criminal Code is commendable in this regard, as it covers these cases of intimidation. See: “Any person who has unlawful carnal by knowledge of a woman or a girl… with her consent if the consent is obtained means of threats or intimidation of any kind, or by fear of harm…is guilty of an offence which is called rape.” This should not be whittled to mere sexual harassment because, as our Criminal Code states, consent to sexual intercourse may be vitiated by threats and intimidation of any kind. Although the use of physical force in this situation cannot be shown, the evidence of the rapist’s motive through his threats and intimidation may be used to establish the woman’s lack of consent.

In other cases, date rape is perpetrated by a social acquaintance, a friend, or a dating or intimate partner of the victim. This is very common where the rapist drugs the victim’s drink at a club or other meeting, or, without drugs, simply forces himself upon the victim in a secluded place. To establish these cases of Date rape is a formidable task. Not only must the prosecution prove lack of consent beyond reasonable doubt, it must prove that the rapist committed the offence with intention to do so, that is, the accused had sexual intercourse with a woman without her consent with the intention to have sex with her without her consent. This would be a huge undertaking, especially because both parties are on friendly terms. It allows the defense to raise the point that being friends, and also possibly romantically acquainted, it is reasonable to infer that the sex was consensual…at least for the man, he did not believe, for the life of him, that the woman did not want it…if not how do you explain why she went to dinner or to the club with him or how do you explain that she invited him to her house?  This is strong evidence to disprove intention to commit rape, despite the fact that the woman may have said NO firmly and struggled with her assailant during the act. The mere fact of mere acquaintanceship tilts the scale in the man’s favour. On top of all these, how does a woman establish rape where she has washed away all the evidence in a bid to erase all the unclean memories?

Even though the woman may establish lack of consent by showing that force was used, this may be impossible, practically speaking. where the rapist struggled with the victim and inflicted serious injuries on her;, is the woman expected to take pictures of wounds and cuts and preserve all the physical evidence to keep reminding her of the gory incident, when all she wants to do is erase all the horrible memories?

How does one establish the fact that she vehemently refused even though she knew this person, perhaps even romantically? As a matter of fact, up until 2011, in Nigeria, evidence of the past sexual history of the victim with other men as well as with the accused could be produced in order to establish a defense against a charge of rape. In simple words, the accused could go to court and cry foul…saying, after all, the woman was not a virgin! I know of nothing more reprehensible and obnoxious. I find it most difficult to comprehend the logic of the law maker in this respect. Did he perhaps think that only non-virgins could genuinely claim to be victims of rape? Or was he simply a chauvinist? Such highly prejudicial evidence not only undermines the liberty of women everywhere but also has no bearing on the immediate rape scenario. This provision has thankfully been repealed in the new Evidence Act, 2011. The current position of the law is contained in Section 234 of the Evidence Act where evidence of past sexual experience with other men may not be given, except by leave of the court; however, the law retains the provision as to the relevance of evidence of past sexual experience with the accused himself. Although a marked progression from the old law, this can hardly be said to be the most desirable state of affairs. This provision also allows the accused to cry foul in court saying…’after all… we had been having sex!’ As though, people do not have the right to change their minds. For, how can consent to previous sexual relations be conceived to mean consent to sex continually? Consent to sex is not a once-and-for-all. It may be withdrawn, and the provision blatantly ignores that. What if, for example, the woman and the man were sexual partners and afterwards she learnt that he had contracted an STD, and, because of that, she withdrew her consent to continue to engage in intercourse? What would be the value of bringing up her past sexual liaison with the same man where he subsequently forced himself on her? How does that serve the interest of justice both to the accused and the victim? What if the woman becomes a devout Christian and therefore decides to quit ‘fornicating’? Does it make it any less rape because she had had consensual sex with the man in question in the past? These are the issues that make Date Rape exceedingly difficult to establish in court.

The answers to many of these questions can only be found when we have specific legislation on date rape to properly cater to those cases where sheer acquaintanceship by its very nature destroys evidence of the fact of rape. Such legislation would redefine the definition of consent to sexual intercourse to include circumstances where the victim clearly expressed that she did not consent to engage in such act and a reasonable person in the actor’s situation would have understood such words and acts as an expression of lack of consent to such an act under all the circumstances, but still went ahead to continue the act through physical or psychological coercion. Also, such legislation would contain provisions relating to drug-induced sex, where a person  knowingly and unlawfully administers a  substance to another person without such person’s consent and with intent to rape the person. The most important provision in such a date rape legislation would perhaps be to eliminate the relevance of evidence of previous sexual encounter with the accused.

Again, our government must step forward to address contemporary contextual issues relating to rape in fulfillment of its obligation to protect citizens of Nigeria.

To be continued…

Bie Jaja

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