Although the Wikipedia
(the free encyclopedia) refers to this as spousal rape (also known as marital rape), which the perpetrator is the victim’s spouse, spousal rape is not universally recognized by law of some countries.
In the United States of America, for instance, there existed a concept called “marital rape exemption” which was embedded in the sexual assault laws of that country.
The exemption means that a husband, by definition, cannot legally rape his wife. The theory stipulates that by accepting the marital contract, a woman has tacitly consented to sexual intercourse any time her husband demands it. The concept dates back to the 18th century common law, and was articulated by English Jurist, Mathew Hale, as follows: “the husband cannot be guilty of rape … for by their mutual matrimonial consent and contract: the wife has given up herself in this kind unto her husband which she cannot retract.”
This position was abolished in 1976, Nebraska being the first state to abolish the marital rape exemption, while other states slowly followed.
In Nigeria, it is not uncommon to hear debates and varying opinions as to the true position of the law.
However, it is safe to say that the law is fairly clear on the subject matter. The penal code which governs the criminal law of Northern Nigeria provides in section 282 (1) that “A man is said to commit rape who save where he had sexual intercourse with his wife, has sexual intercourse with a woman in any of the following circumstances.
a) Against her will
b) With 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 not her husband and that he is not another man to whom she is or believes herself to be lawfully married.
e) With or without her consent, when she is under 14 years of age or of unsound mind.
Section 282 (2) of the penal code provides expressly that sexual intercourse by a man with his own wife is not rape, if she has attained puberty. In the recent case of Idris Rabiu V. State (2005) INCC 578 at 590 the court defined rape as an “act of sexual intercourse committed when the women’s resistance is overcome by force or fear, or under other prohibitive conditions”.
Equally, the criminal code Act which governs the criminal law of the southern states of Nigeria, section S.357 states follows: “any person who has unlawful carnal knowledge of a woman or girl, without her consent, if the consent is obtained by force or fraudulent representation as to the nature of the act, or in the case of married, by representing her husband is guilty of an offence which is rape.”
These provisions of the law (i.e, the combined effect of the Penal Code and the Criminal Code Act) presuppose that marriage being a lawful union between a man and a woman implies consent for a husband to have sexual intercourse, anytime he demands it, with his wife.
The essential elements that constitute rape are: “unlawful carnal knowledge” and “lack of consent.” The institution of marriage presupposes the presence of consent. A man and woman married under the appropriate law. (The Marriage Act or the Customary Law) consent to the rights and benefits enshrined in marriage which amongst other things, include consummation of marriage (sexual intercourse in this case).
John Chidi Enyie