Legal Implication of Sexual Violence

By

Bello Idris

muhammadbel_law@yahoo.com

PROLOGUE

The story of Sebastian Kuni, 28, a resident of Karmo area in Abuja made the rounds who was accused of defiling a 19-month old baby.[1]

A 47- year old man said to be HIV positive was arrested by the Police for having carnal knowledge of a 12- year old girl in Kaduna.[2]

All theses and lots of other local recent incidences, point to the fact that certainly, something is responsible for the escalation of the scourge. Perhaps, due to the failure of the law or as a result of the show of lack of interest by the government; the collapse of Police investigation mechanisms and inefficiency; or likely, based on the culture of silence and stigma.

Though, men and boys are also victims of sexual violence, women suffer disproportionately. This paper articulates the problem with particular attention to sexual violence against women by the men.

DEFINITION OF THE TERM

The International Criminal Tribunal for Rwanda in the case of Akeyesun in 1998 defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.

According to Oxford Dictionary, rape means “the crime, typically committed by a man, of forcing another person to have sexual intercourse with the offender against their will”.

Furthermore, the World Health Organization (WHO) in its 2002 World Report on Violence and Health defined sexual violence as "any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person's sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work”.

WHO's definition of sexual violence includes but is not limited to rape, which is defined as physically forced or otherwise coerced penetration of the vulva or anus, using a penis, other body parts or an object. Sexual violence consists in a purposeful action of which the intention is often to inflict severe humiliation on the victim(s) and diminish human dignity.

THE FORMS OF SEXUAL VIOLENCE

Sexual violence can take many forms and take place under very different circumstances. A person can be sexually violated by one individual or several people (e.g. gang-rapes); the incident may be planned or a surprise attack. Although sexual violence occurs most commonly in the victim’s home (or in the perpetrator’s home), it also takes place in many other settings, such as the workplace, at school, in prisons, cars, the streets or open spaces (e.g. parks, farmland).

The perpetrator of a sexual assault may be a date, an acquaintance, a friend, a family member, an intimate partner or former intimate partner, or a complete stranger, but more often than not, is someone known to the victim. There is no stereotypical perpetrator; sexually violent men come from all backgrounds, rich and poor, academic and uneducated, religious and non-religious. Perpetrators may be persons in positions of authority who are respected and trusted (e.g. a doctor, teacher, tourist guide, priest, police officer) and thus less likely to be suspected of sexual violence.

Sexual violence is common in situations of war and armed conflict. Specifically, rape and sexual torture are frequently used as weapons to demoralize the enemy; women are sometimes forced into “temporary marriages” with enemy soldiers. Women who are incarcerated may be subjected to sexual violence by prison guards and police officers Other forms of sexual violence include, but are not limited to:

— sexual slavery;

— sexual harassment (including demands for sex in exchange for job

     promotion or advancement or higher school marks or grades);

— trafficking for purposes of forced prostitution;

— forced exposure to pornography;

— forced pregnancy;

— forced sterilization;

— forced abortion;

— forced marriage;

— female genital mutilation;

— virginity tests;

__ sexual exploitation;

__ domestic violence;

Some perpetrators use drugs in order to facilitate sexual assault. A woman who has been plied with drugs is easier to control, to the extent that physical force is not necessary, as the drugs will render her submissive and incapacitated and, in some cases, unconscious. In this respect, the increased use of so-called “date rape” drugs in recent years has received much attention.

The examples are legion and statistics frightening. Sexual violence is on the increase in Nigeria. Official statistics suggests that a large number of women are said to have been sexually abused. Shockingly, a staggering 97.2% of them do not report the crime to the Police. They endure and sometimes die in silence, believing that the law will not protect them.

SEXUAL VIOLENCE UNDER THE NIGERIAN PENAL LAWS

Ironically, there is no national law specifically addressing violence against women in Nigeria.[3] Nigeria has ratified the Convention for the Elimination of Discrimination against Women (CEDAW) in 1985. However, according to the Constitution, International Treaties can only be enforced once a corresponding domestic law has been enacted by the legislature.[4] Such domestic legislation was drafted since 2005 but up till now has not been passed into law.

In addition, the Domestic Violence Protection Bill 2006 has only passed its first reading at the National Assembly. Again, out of the thirty- six states of Nigeria, only four states including Lagos State have passed the Laws against the insidious crime.

In a Report submitted to the United Nations (UN) Human Rights Council, the Government of Nigeria stated that it was unnecessary to have a law that specifically addresses violence against women since “assault and battery have been made subject of both civil and criminal laws, with the criminal aspects attracting very stiff and severe penalties”.[5] For instance, Section 360 of the Criminal Code applicable to the Southern Nigeria provides:

“Any person who unlawfully and indecently assaults a woman or a girl is guilty of a misdemeanour, and is liable to imprisonment for two years”.

The unlawful and indecent assault of a male person is a felony and is punishable by three years imprisonment.[6]

 Furthermore, offences relating to rape, acts of gross indecency, criminal force to woman to outrage modesty, buying and selling of minor, wrongful restraint and confinement, criminal force and assault, kidnapping and abduction, unnatural offences, traffic in women, offences relating to marriage and incest, have all been criminalized under the Penal Code of Northern Nigeria.[7]

The punishment provided for the offence of rape is life imprisonment or for any less term and shall also be liable to fine.[8]

SEXUAL VIOLENCE VERSUS THE POLICE

The Nigeria Police Force is the primary security and law enforcement agency created by the Constitution of the Federal Republic of Nigeria for the purpose of safeguarding internal security of the country.[9]

The establishment, organization, control, command and management of the Nigeria Police Force are governed by the Police Act and Regulations.[10]

The general duties of the Police are contained under Section 4 of the Police Act. Other powers vested with the Police include investigation of crimes and prosecution of suspects among others.[11]

It is generally believed that Police carry out thorough investigation of rape case reported to them, which is why most cases don’t get to court. The few that eventually get to the court are stagnated vide numerous adjournments. The saddest thing is, after decades of prosecution, the cases are often been dismissed on technical ground by the court. The Amnesty International criticized Nigeria’s judicial system due to its conviction rate of 10% of rape cases.[12]

Ideally, Police should respond and take action on any sexual violence incident reported to them, regardless of who made the report and how it was made. The action taken should be based on risk assessment and risk management, regardless of whether the complaint was verbal or written.[13]

Where the complaint is oral, the Police should reduce or cause it to be reduced to writing in a prescribed form in accordance with Section 117(1) of the Criminal Procedure Code applicable to the Northern Nigeria, so long as he is satisfied that it will serve the public interest to inquire into the matter.

 By Section 123 of the Criminal Procedure Code, the Police have the power to invite any person for the purpose of examination and investigation relating to a matter that was reported to them and whenever arrest becomes necessary, the Police can validly arrest acting under Section 26 of the same Code.

Similarly, the Police may, in the course of investigation see the need to conduct a search on the body of the suspect or his premises or on the premises of any other person. Section 44(1) of the Criminal Procedure Code permits the Police to make a search except that the search of a woman can only be done by a woman.[14] Again, where the search involves woman’s quarters, the person making the search shall, before entering the apartment give notice to such woman that she is at liberty to withdraw and shall afford her the necessary facility for withdrawing.[15] Note that in searching a woman, there should be strict regard to decency.[16] Note further that, in searching premises, it should be done in the presence of witnesses.[17]

Moreover, whenever it appears to the Police that investigation into any case of sexual violence cannot be completed within the constitutionally stipulated 24- hours of the arrival of the accused at the Police Station, the Police should release or discharge him or send him as soon as practicable to the nearest court to take cognizance of the matter.[18]

Where in the course of investigation, the suspect confesses to the crime, the Police Officer should record such confession in the Case Diary in his own handwriting in the presence of the suspect, read it over to him and require him to sign or thumbprint and the Police Officer should also sign as the recorder.[19]

Where however, the Police discover that no offence has been committed, or that the act of the suspect does not constitute an offence, such investigation should be terminated without an inquiry or trial.[20] But where on the contrary, the investigation discloses a prima facie case, or that there is sufficient evidence or reasonable ground or suspicion to justify sending the suspect to court, the Police should send the suspect to court on a First Information Report (FIR) for his trial.[21]

It is regrettable that many Nigerians have little or no faith in the integrity or capacity of the Police to redress crimes of sexual abuse based on the general perception that the Police are highly corrupt and inefficient. It is equally incontestable that oftentimes Police advise the woman who reach them for help to abandon the case to safe her integrity. It is notably most regrettable that violence against women is perpetrated not just inside homes but directly by the Police and security forces in the streets and in detentions.

THE WAY OUT

The solutions range from individual to government, to law reform. They are basically as follows:

1.    There should be massive campaigns using the media, billboards, public transportations, radios, televisions, Mosques and Churches on the religious and moral implications of sexual violence.

2.    There should be seminars and workshops by the government and NGOs on the subject.

3.    Medio- legal services by the health sector by collecting the necessary information from the victim to give to the Police for the purpose of investigation and prosecution. To achieve this, there is the need to set up a standard protocol and guidelines to guide the gynaecologist or any other health personnel in the quest to diligently handle a case of sexual violence.

4.    The need to set up telephone helplines, preferably free of charge for the victims of sexual abuse.

5.    To set up laws in schools to address the menace of sexual abuse especially in the Universities. The recent move to criminalize sexual abuse in the Nigerian Universities is a welcome development and should be supported by all.

6.    The need to speed up cases of sexual violence in court, to expeditiously issue the medical reports by the medical personnel. Sometimes the Doctors are unwilling to go to court to testify which hinders proper adjudication of the cases.

7.    There should be legal reform on the subject, viz:

-         To broaden the definition of rape;

-         To reform the rules on sentencing and on admissibility of evidence;

-         To remove the requirement for victims account to be corroborated; and

-         To remove the requirement of penetration    

CONCLUSION

My personal assessment of the situation reveals to me that the reason for the escalation of the problem in Nigeria is not the law in strict sense, giving the relatively abundant penal resources. I agree that having a national and states laws on sexual violence will go a long way in curbing the menace but it is not solely the solution.

I personally chose not to belong to the school of thought which sees Police as responsible for the escalation of the problem because; you can always find within the Police Force some honourable Police Officers who uphold firmly to the ethics of their profession. Nevertheless, there is the need for the Police to be proactive in dealing with the cases of sexual violence reported to them. There is equally the need for gender sensitivity training for the Nigeria’s Police, Doctors, Security Forces, Judges and other officials in the Criminal Justice System and Lawyers.

On the final analysis, I attribute the reason for the escalation of sexual violence in Nigeria to the women who condone, tolerate, conceal, settle and refuse to report or cooperate as prosecution witnesses in sexual violence cases just to safe their faces at the expense of the society.

One thing is therefore certain, no matter the laws, no matter the enthusiasm of the Police, report has to be made to the Police alleging sexual abuse by a victim, whose support and cooperation is sine qua non to successful investigation and prosecution of the offence otherwise it will be a wild- goose chase.

Thank you for listening.

REFERENCES

1.    Antai, DE and JB Antai, Attitude of Women towards Intimate Partner Violence: A Study of Rural Women in Nigeria, Rural and Remote Health. http://www.ncbi.nlm.nih.gov(Pubmed/18842071). [Accessed 4/11/2013].

2.    Bryan Garner, A., Ninth Edition, Thomson Reuters, USA, 2009.

3.    Code of Practice for the Investigation of Family Violence, 2^nd Edition, Victoria Police, USA.

4.    Constitution of the Federal Republic of Nigeria, 1999 as amended.

5.    Nigeria, 5 January 2009. National Report submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1 (A/HRC/WG.6/4/NGA/1). http://www.lib.ohchr.org/HRBodies/UPR/Documents/Session4/NG/A_HRC_WG_4_NGA_1_E.pdf. [Accessed 4/11/2013].

6.    Ndi, Suleiman I, The Nigerian Law Dictionary, New Edition, 2000.

7.    Leonie Taylor, Domestic Violence: The Problem Pervading Nigeria http://www.thinkafricapress.com/nigeria/domestic-violence-problem-pervading

8.    http://www.family.findlaw.com/domestic-violence/what-is-domestic-violence.html. Retrieved 2007/06/2013. [Accessed 4/11/2013].

9.    http://www.un.org/.../daw/cedaw/cedaw/htm. [Accessed 10/11/2013].

10.                       Aihie, O. N., Prevalence of Domestic Violence in Nigeria: Implications for Counselling, Benin- Nigeria.

11.                        Bazza, Hadiza Iza, Domestic Violence and women’s Right in Nigeria: Societies Without Borders, Vol. 4 No. 2 of 2009.

12.                        Ozo- Eson, Philomena I., Law, Women and Health in Nigeria. Journal of International Women Studies, Vol.9 No.3 of 2008. http://www.bridgew.edu/soas/jiws/may08/philomina.pdf. [Accessed 5/11/2013].

13.                       The Criminal Procedure Code of Northern Nigeria.

14.                       The Criminal Code of Southern Nigeria.

15.                       The Penal Code of Northern Nigeria.

16.                       The Shariah Penal Code of Zamfara State, Law No.1 of 2000.

17.                       The Shariah Criminal Procedure Code, Zamfara State, Law No.1, 2000.

18.                       The Student Manual, In- Service Training for Police Officers, New Jersey Division of Criminal Justice, Module 4.