The young lawyer stood before her Principal and responded to the question, ‘what are the ingredients of rape’?
‘Penetration, consent, acts of resistance?’
Madam raised an eyebrow at the mention of the third element. ‘Is the victim’s failure to resist a proof of consent? This is even a matter for defilement, so the element of consent would not apply’. The matter was closed for that morning.
Before we go into definitions of rape and defilement, it is worthy of note to state that they both fall under the wide umbrella of sexual offences, unlawful carnal knowledge or any term used by the law to give its meaning.
A guide to the Sexual Offences Act, 2010 defines sexual offences as inappropriate interference with one’s physical body by another person through deliberate touching of any part of one’s body by that other person, including the private parts, in a sexual manner without the consent of the person being touched. This type of offence is not limited to intrusion on the private parts alone but includes offensive assault of the victim’s body in a sexual manner.
The Criminal Code Act applicable in Nigeria, but subject to the application of the Penal Code in the Northern parts of the country, defines carnal knowledge or carnal connection as an offence whose elements is complete upon penetration. Where carnal connection takes place otherwise than between husband and wife, it is regarded as unlawful carnal knowledge [Section 6 of the Criminal Code Act]. All these can be simply explained as an unlawful intrusion or penetration of the body of a person by another in a sexual manner.
With the above introduction, it is pertinent to explore the concepts of rape and defilement to see if there’s any difference between them. The well-appraised Violence Against Persons (Prohibition) Act (VAPPA), 2015, in its first section, provides that for an act to be termed as rape, there must be a non-consensual penatration by a sexual organ or object on the victim.
Consent obtained by force, threat or intimidation of any kind, fear of harm, fraudulent misrepresentation or intoxication is no consent at all as it is not given willingly and voluntarily. In the case of a married person, where the offender impersonates the spouse of the victim to engage in sexual relations with him or her, such is guilty of the offence of rape.
The Criminal Code Act has a similar definition of rape in section 357 of the Act but the VAPPA goes further to extend the forms of penetration to include other objects where the former is still confined to the sexual organ as the object of penetration. As commendable as the provisions of the VAPPA are, they only apply to the Federal Capital Territory, Abuja and a few other states that have domesticated the Act.
It is our opinion that other states domesticate this Act in their various States House of Assembly to give it a wide and uniform range of force in the country.
Are rape and defilement one and the same? The acts are similar but the distinguishing factor is age. A child cannot be raped but can be defiled. Section 277 of the Child Rights Act, 2003, defines a child as any person below the age of 18 years. Thus, any person below the age of 18 can only be defiled under the law.
To the crux of this article, is consent a requirement to be proved under a charge for defilement? It has been established from the foregoing that absence of consent is a germane element of the offence of rape and such approval must be void of any form of inducement, coercion or intoxication. Should a child then be saddled with the responsibility of proving the presence of consent or otherwise?
Since the law governing the rights and responsibilities of minors is aimed towards protecting the interest of the child, it would not only be ironical to place the burden of proving consent on the child, but such would be tantamount to unreasonable and unjust, posing a herculean task on the prosecution. It is thus the law that consent is not an ingredient of defilement.