De-genderisation of the Offence of Rape under the Violence against Persons (Prohibition) Act 2015: An Assessment of the Practical Challenges and the Slippery-Slope Effects
| DOI | 10.3366/ajicl.2020.0324 |
| Pages | 488-505 |
| Published date | 01 August 2020 |
| Date | 01 August 2020 |
What does it mean for the government to treat its citizens as equals? That is … the same question as the question of what it means for the government to treat all its citizens as free, or as independent, or with equal dignity … To accord with this demand, a government must be neutral on what might be called the question of the good life …
In its simplest form, gender mainstreaming is the conscious effort by the government to consider how laws, policies and decisions made by the lawmakers and policy-makers will affect the peculiar interests of women and men. It is ‘a strategy for making women's as well as men's concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated.’
In Nigeria presently, one of the notable laws that have attempted to place both men and women on the same pedestal of equality is the Violence Against Persons (Prohibition) Act 2015.
Except for cursory reviews of the VAPP Act on the pages of newspapers and the Internet, it will appear that there is a dearth of comprehensive, analytical reviews and literature on some of the salient provisions of the Act. Historically, the law of rape in Nigeria under the Criminal Code, Penal Code, Criminal Procedure Code and the respective similar statutes in all of the 36 States in Nigeria is gender-specific. The offence of rape is genderised – that is, it can only be committed by a male person against a female person. In an attempt to mainstream and de-genderise
One of the most salient, innovative and controversial provisions of the VAPP Act is contained in section 1. The section provides for the offence of rape, and in its four subsections, it entirely redefines the offence of rape in a way that it is not only novel to the Nigerian criminal jurisprudence, but is also capable of creating serious practical challenges to the law enforcement authorities. This singular redefinition of the offence of rape is also capable of bringing with it some slippery-slope effects. In spite of all these, there are still acts of rape not presently contemplated in the redefinition of rape under the VAPP Act. The jurisprudence of rape in jurisdictions such as South Africa has recognised what may be termed as third-party rape or causal rape.
The Act, as captured in its long title, seeks to achieve three major things: (a) to eliminate all forms of violence in private and public life; (b) to prohibit all forms of violence against persons; and (c) to provide protection and effective remedies for victims and punishment of offenders. To achieve these three orders, the VAPP Act creates 26 different offences against the persons. The 26 offences are contained in the first 26 sections of the Act.
Apart from applications for protection orders which are expressly within the jurisdiction of the Abuja High Court to grant, the VAPP Act is absolutely silent on which court will have jurisdiction on criminal charges filed in respect of any of the 26 offences created under the Act. This obvious gap comes with a lot of concerns, knowing full well that bringing an application for a protection order and instituting criminal proceedings in respect of any of the offences created under the Act are entirely two different things. Where the Magistrates' Court will come in the whole of this equation is a real issue begging for an answer.
Until the enactment of the VAPP Act in 2015, the law on rape at the federal level was gender-specific and devoid of gender neutrality. The genderisation was inherent in all the provisions of the relevant laws on rape to warrant the conclusive position that rape in Nigeria can only be committed by a male person towards a female person. The present de-genderisation that was brought about by the VAPP Act in 2015 could be said to have been influenced by the desire of the federal lawmakers to incorporate gender mainstreaming into the jurisprudence of rape law in Nigeria. As earlier posited, the ultimate goal of gender mainstreaming is gender equality in spheres of gender relations, in law and in the applications of such law.
The face of rape law in Nigeria before the VAPP Act 2015 (at the federal level) can be gleaned from the relevant provisions in the Criminal Code and the Penal Code. The provisions of the Acts on rape are as set out below:
Any person who has unlawful carnal knowledge of a
Unlawful carnal knowledge means carnal connection which takes place otherwise than other than between husband and wife.
A man is said to commit rape who, except in the case referred to in subsection (2) of this section, has sexual intercourse with
against her will;
without her consent;
with her consent, when her consent has been obtained by putting her in fear of death or of hurt;
with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
with or without her consent, when she is under fourteen years of age or of unsound mind.
Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.
The accused had sexual intercourse with the prosecutrix.
The act of sexual intercourse was done without her consent or the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.
The prosecutrix was not the wife of the accused.
The accused had the
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