Rape is an evil behaviour against young or grown-up female adults that constitutes an atrocious and totally resentful behaviour in any decent community. It is a criminal offence of forcing a woman or female of any age to submit herself to sexual intercourse against her will. It is an unlawful carnal knowledge of a woman by a man forcibly without her consent; or when the woman’s resistance is overcome by force or fear, or under other prohibitive conditions. In most cases, the woman is compelled to submit herself by force or by threat of imminent death or serious bodily injury that may be atrociously inflicted on her by the aggressor. In some cases, the man may have substantially impaired her power to appraise or control her conduct by administering or employing, without her knowledge, drugs, intoxication or other means for the purpose of preventing resistance; thereby making her to be unconscious or totally helpless. It is indeed an exhibition of highly damnable “flagrante delicto.”
The crime embraces unnatural as well as natural sexual intercourse. Statutorily, our law books clearly present the offence as contained, for example, in Section 357 of the Criminal Code as well as Section 282 of the Penal Code that “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 threat 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. The law prescribes further that any person who commits the offence is liable to imprisonment for life, with or without whipping.
This provision of law on the unlawful act of rape is almost verbatim with similar prescriptions in most civilised countries, including the United States of America, Great Britain, Australia, Canada, India etc; thereby showing how resentful the obnoxious and dastardly immoral act and the painful trauma usually inflicted on a victim of the crime is viewed all over the world.
More unfortunate is the fact that the act involves a wide range of male offenders and female victims of all ages; as repulsive as only three month-old female child, through to victims and helpless women as old as more than eighty years old! In some cases, studies have shown that some victims of rape, unfortunately, become pregnant thereafter, or laid with consequential virginal infections, like HIV etc.
It is, in my view, rather inordinate and totally insensitive of any right-thinking person to view or treat this heinous crime and similar serious offences like kidnapping, grievous bodily harm etc with kid gloves.
Experience has shown from evidence of victims of rape that the offence gives rise to a sordid, pitiable, permanent and nauseating trauma on the victim, so much that the courts should be ready to inflict substantial punishment upon the offender who has blatantly violated the womanhood and privacy of the victim to which she is absolutely entitled and jealously preserved by her.
The Sexual Harassment Bill recently passed by the Senate is a welcome development. However, one wonders why the bill was not extended to other tertiary institutions!
This scourge of rape, sexual harassment and gender violence on women has currently become a subject of enormous embarrassment in our country in recent times. The Nigeria Police claimed to have recorded 717 rape cases between January 2020 and May 2020, in spite of the fact that about 95% of child sexual abuses go unreported because of the fear of stigmatisation.
The Child’s Rights Act adopted by Nigeria since 2003 has yet to be passed and adopted by some states of the federation. By this unwholesome omission, such states remain accomplices in the defilement and abuse of children. All states should be made to do the needful in terms of prevention and response built around the crime of rape and other sexual offences on women and children.
Section 34 of our rickety 1999 Constitution provides that “Every individual is entitled to respect for the dignity of his person…whereof (a) no person shall be subjected to torture or to inhuman or degrading treatment”. The courts have often misinterpreted or laid undue emphasis on this provision by assuming that the salient provision of whipping added to the punishment prescribed in the Criminal Code of all states of the Federation for the offence of rape is prohibited by the said section of the Constitution. In my view that the sentence of whipping which was deliberately included in the Codes that a court can add to the punishment in serious cases like rape and other abominable offences committed against innocent women and children, was NOT abolished by the said provisions of the constitution.
Throughout my days on the Bench (as a Judge), I did not hesitate on adding (or as in the alternative) the punishment of whipping (strokes of the cane) to my conviction and sentence upon the convict for some heinous offences such as rape, cultism or infliction of serious bodily harm, to the extent that I was nicknamed “Afonja Elegba”. No appellate court ever frowned upon that aspect of my punishment in such serious cases at anytime whatsoever. After all, the offence of rape or defilement of children as young as two months old by hefty criminals, or gang-raping a woman is, in my view, a serious “torture” which is also an invidiously ‘inhuman’ or a degrading treatment’ upon their helpless and innocent victims.
After all, a suspect who commits the offence of murder is usually convicted and normally sentenced to death by hanging or by a firing squad. This mandatory punishment of death is never looked upon that the convict is being subjected to “torture”, or an inhuman or degrading treatment. It seems, therefore, improper to assume that the said provision of the constitution did abolish, in substance, the prescription of punishment for rape in the Criminal Laws of Nigeria.
I once sentenced a 24-year-old boy to a punishment that he should be given six lashes, publicly, for beating and wounding his aged father in the public in spite of all pleadings by the boy’s mother and other siblings and neighbours around. The only sentence of whipping was prompted by passionate pleadings of the said father and his lawyer (a Senior Advocate of Nigeria), that I should not send the boy to prison to save the name of his family (the father being a High Chief). His lawyer later informed me that the punishment of whipping on the boy had truly reformed him out of his former wild dispensation, especially against women in the community.
The recent enactment by our lawmakers that a convicted offender of rape may be castrated seems to me to be out of place in teaching the convict an appropriate lesson. Also, the fact that opening a registrar of rapists as proposed by some states in this country is a wrong idea seeking a solution against the crime in question; more so in view of the fact that, apart from Nigerians generally being bad readers who care not to check rape offenders that have been convicted, castration of a man does not prevent an erection of his turgid sexual organ for use in repeating or committing another offence of Rape. Rather, in the case of a married man, it is his spouse that will suffer the brunt of inability to procreate and bear a child in future.
In sum therefore, it is my view that the court should not hesitate to inflict the appropriate punishment provided in the Criminal Laws of this Country which include ‘whipping’ of a rapist, especially whose victims are babies, children or infants under 13 years old. An addition of six strokes or more on the buttocks of a rapist of any age to his sentence of imprisonment (without fine) to be inflicted on him publicly somewhere within the area of commission (if and where possible), and in the presence of the victim of the convict will repay the victim appropriately for the torture and inhuman trauma callously inflicted on her without justification.
This provision is commendably adopted and contained in some Northern states under the Penal Code and the Sharia Laws as being a highly punitive, preventive and of reformative effect on culprits of serious offences.
Let our courts be proactive and stand up against this menace exploiting our children and womenfolk. Certainly, justice would justifiably have been served retributively where a sentence of whipping is executed on a convict of a rapist who had also subjected his innocent victim to a more severe and brutal treatment. A drastic crime deserves a drastic punishment.
Hon. Justice Afonja (retd), a former Chief Judge of Ondo State, wrote in via