By Maureen Chikodi Agbodike, Esq (Simplilegal with Maureen)
INTRODUCTION
A 2018 report on Statista showed that a significant portion of reported sexual abuse cases were committed by husbands or partners; however, due to stigma, cultural beliefs, and legal gaps, many cases go unreported and swept under the rug where reported. Although advocacy groups continue to push for stronger laws to protect women from this menace, yet many women still suffer in silence.
In Nigeria, spousal rape remains a deeply controversial issue, unlike in many other countries where spousal consent is not presumed. Nigerian law does not explicitly criminalize non-consensual sex within marriage. While the absence of a direct spousal rape law remains a challenge, there are existing laws that could be explored to provide victims with potential avenues for legal action. I therefore believe that this legal gap does not mean a woman has no legal recourse if she is sexually violated by her husband.
THE LEGAL GAP AND ITS CONSEQUENCES
The absence of clear laws against spousal rape creates a dangerous loophole, often leading to increased cases of domestic violence this is because when a husband believes he has absolute authority over his wife’s body; it can escalate into physical abuse, sexual coercion and even life-threatening assaults. Many women feel powerless because they assume the law does not protect them. However, this assumption is not entirely true because, while spousal rape itself is not explicitly outlawed, there are legal provisions that can be used to seek justice.
In Nigeria, marital rape is not explicitly criminalized under both the Criminal Code applicable in the southern states and the Penal Code applicable in the northern states due to provisions that either exempt husbands from prosecution or fail to recognize non-consensual intercourse within marriage as a crime. Here is an evaluation of these laws:
Section 357 of the Criminal Code Act defines rape as:
“Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or if consent is obtained by force, threats, intimidation, false and fraudulent representation as to the nature of the act, or by administering drugs, is guilty of an offense which is called rape.”
The key term “unlawful carnal knowledge” in the said section means that a husband cannot be charged with rape because, under Nigerian law, sex within marriage is deemed lawful.
Section 6 of the Criminal Code further defines unlawful carnal knowledge as one that happens except between a husband and a wife, thereby reinforcing the idea that rape laws do not apply to married couples.
Moving to the Penal Code, Section 282(1) categorically provides that: “A man is said to commit rape who… has sexual intercourse with a woman in any of the following circumstances: (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) 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; (e) with or without her consent, when she is under fourteen years of age or of unsound mind.”
These provisions explicitly exempt husbands from being prosecuted for raping their wives.
THE PROBLEM: A LOOPHOLE THAT FUELS DOMESTIC ABUSE
The argument that marriage rape is not a crime creates a dangerous loophole that emboldens perpetrators and silences victims. If a woman cannot seek justice for sexual violence in marriage, it sets a precedent for other forms of abuse to thrive, including but not limited to:
THE SOLUTION: HOW THE LAW CAN STILL WORK FOR VICTIMS
The legal definitions of rape in both codes limit the offense to male perpetrators, exclude non-consensual acts beyond penile-vaginal penetration, and largely exempt marital rape. While Nigerian law does not explicitly criminalize marital rape, certain legal provisions may still provide a pathway for women to seek justice. Ultimately, if justice is served, does it matter which legal provision a victim relies on or the specific charge brought against the perpetrator?
Notably, the law does not make exceptions for marriage. A husband cannot claim immunity under this provision.
I do not believe that the law intends for a wife to be subjected to assault and battery under the guise of marital rights. Therefore, I am of the view that the above legal provision applies to marriage as well. If a woman provides evidence of physical assault, such as bruises, swelling, or bleeding caused by her husband, he can face criminal charges for assault and battery.
CONCLUSION:
While Nigeria lacks explicit laws criminalizing marital rape, this does not mean that women are without legal recourse. Existing provisions on unnatural carnal knowledge, assault, and battery offer a means to seek justice, not to forget the VAPP Act, which provides additional protection. However, legal gaps continue to leave many women vulnerable, thereby reinforcing the urgent need for legislative reforms. Until these changes occur, it is vital to raise awareness that marriage is not a license for abuse. A spouse cannot hide behind marriage to justify unnatural acts or physical abuse because, under Nigerian law, that is a crime.
References:
Source: Sabilaw
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