Abstract
Nigeria
is a large and populous country with a lot of beliefs and superstitions. These
beliefs are largely fuelled and sustained through religion, societal views and
a sense of morality. These factors play a role in the attitude Nigerians have
towards certain issues, criminal issues especially.
These criminal issues
elicit different responses from the different classes of individuals within the
Nigerian space, and one of such criminal issues is rape; a crime that affects
the victims both physically and psychologically as victims, who are largely
female, are stigmatised and labelled with unsavoury names and are sometimes
even accused of being at fault for their own rape and consequently victims have
been known to commit suicide to thus escape the shame they face from society.
This
stigmatisation is largely fuelled by the disproportionate and frankly
impossible elements which the prosecution must prove to be granted a conviction
against the accused. To this point, this article seeks to suggest whether this
burden of proof should shift from the complainant on to the accused; due
largely to the peculiar nature of the crime of rape compared to other crimes as
well as the burden of reporting the crime and being at the forefront of proving
that the elements of rape have been fulfilled so a conviction can be made.
BURDEN OF PROOF As with all crimes, the
burden of proof in rape lies with the complainant/prosecution, who must show
that the accused did indeed commit the crime being alleged and that he intended
to commit the alleged act. It is not enough merely to say, that the accused
committed the alleged act however, this must be proved beyond reasonable doubt
that the accused indeed committed the alleged act. This even receives statutory
backing in the highest law of the land, the Constitution of the Federal
Republic of Nigeria1. The underlying principle behind the notion of this
stringent burden lying in the prosecution, is the point that it is better that
ten guilty men should escape than that one innocent man should suffer.2 In the
case of The State v. Danjuma3, the Supreme Court stated;
A
cardinal principle of law is that the commission of a crime by a party must be
proved beyond reasonable doubt. The burden of proving that any person is guilty
of a crime rests on the prosecution… the burden never shifts and if on the
whole of the evidence the Court is left in a state of doubt, the prosecution
would have failed to discharge the onus of proof which the law lays down on
upon it…4 WHAT IS RAPE? According to the
Oxford Advanced Learner’s Dictionary,5 rape is defined as “to force somebody to
have sex with you when they do not want to by threatening them or using
violence.”
1
See section 36(5) 2 Okonkwo and Naish (2012). Criminal Law in Nigeria. 2nd ed.
Ibadan: Spectrum Books Limited. p.93 3
[1997] 5 NWLR (pt. 506) 512 4 ibid 5 The 9th edition.
The
Criminal Code defines rape as:
…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 threats 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 impersonating her husband…6 As stated above, rape affects its victims both
physically and psychologically and as seen from the above definitions, rape is
a vile, violent and disturbing act which is rightly punishable under the law as
a criminal act. One point that sticks out in the above definitions is the
importance of Consent. The requirement
of consent in a rape trial is so essential that where it can be proved that
consent was absent, a conviction of rape will most likely be given while the
presence of consent will provide the accused with a strong defence and thus
weaken the case of the complainant. Thus the lack of consent is a central
factor towards establishing the offence of rape. To this effect, the accused
must not only be shown to have committed the act (of rape), but that he did so
with the intention of having sexual intercourse without the victim’s consent or
that the accused must have been recklessly indifferent as to whether the victim
was consenting or not.7 The victim is expected to show as well, in a situation
where the consent was obtained fraudulently that she was induced and relied on
the fraudulent information.
The
requirement of consent however has probably been the most difficult thing to
prove by the accuser in a rape trial. In D.P.P v. Morgan8, the House of Lords
stated that where an accused believed that the woman was consenting, he should
not be guilty of rape even though he had no reasonable grounds for his belief.
The principle of the decision reached in this case is still very relevant in
Nigeria, and it just goes to show the insensitive burden placed on the
prosecution in proving the offence of rape. This will no doubt lead to
injustice and it is perhaps no surprise, however unfortunate it may be, that
Nigeria has only ever recorded 18 rape convictions in her history.
A
case that exemplifies the injustice that may result in a rape trial is the case
of Ogabi v. The Republic9. Here, the appellant did not deny having sexual
intercourse with the victim but contended that he did so with her consent. He
was convicted by the High Court and sentenced to a term of imprisonment. Upon
appeal to the Supreme Court, the court held that the presence of injury on the
private part of the victim was not conclusive proof of absence of consent to
the sexual act and the failure of the prosecution to call material witnesses
who approximate as closely as possible to what may be described as an
eyewitness was prejudicial to the prosecution’s case. The appeal was thus
allowed! The notion that women or victims are expected to fight back while
being raped further contributes to the seemingly obtuse attitude people have
towards consent in rape. It is not
6
Section 357. See also section 282, Penal Code Act; section 258, Criminal Law of
Lagos State. 7 D.P.P. v. Morgan (1975) 2
All ER 347; R v. Olugboja 3 All ER at 433 8 Ibid 9 (1965) NMLR 364
uncommon
to hear questions being asked about the dressing of the victim at the time of
the rape, or why the victim (if a woman) would go over to a man’s house to
sleep over, suggesting she was asking for it. Probably the most infuriating of
all, is the stereotype that a woman really means yes when she says no. In other
words, consent is given indirectly and thus the victims are essentially
enablers of their own rape. Another important point that sticks out in trying
to prove rape is CORROBORATION. It is established practice, that the evidence
presented by a complainant in sexual offences must be corroborated10. In R v.
Baskerville11, corroboration was defined as;
evidence
which implicates the accused, that is, which confirms in some material
particular not only the evidence that the crime has been committed but also
that the prisoner committed it.12 This essentially means that the victim’s
story must be supported by some external evidence connecting the accused to the
rape. However this is counterproductive as more often than not, rape occurs in
a private setting, away from the full glare of the public. As a result, the
victim would then need to rely on direct evidence such as her appearance,
medical reports or examinations immediately the offence was committed,
statement to police, etc.
The Supreme Court in Edet Iko v. The State13, held
that the fact that the complainant said accused inserted his penis into her
vagina is not ipso facto sufficient proof of penetration in the absence of
corroborative evidence like a medical report to support the evidence of
penetration. In R v. Saidu, the victim was found sitting on the accused’s lap
who was wiping her thigh with a cloth, which was identified as belonging to the
accused. Upon examination, the cloth was found to contain human semen, which
was also found on the thigh of the girl without blood. The doctor, who examined
her could not say whether the rupture of the hymen as well as the condition of the
outer parts of the girl’s vagina was recent. Accused was thus convicted of
indecent assault instead of rape! The
above cited cases show the attitude that judges in Nigeria have towards
corroborative evidence in rape trials. In one reported case14, the court
blatantly disregarded medical evidence that showed laceration of the hymen,
though not stating the cause, as well as the testimony of an eye witness who
stated that he found the appellant on top of the complainant. Despite the
requirement of corroboration in practice, while adducing evidence in a rape
trial, the reported cases show that more often than not, the courts would
ignore this corroborative evidences even in situations where it is clear that
the evidence supports the fact that the accused did in fact commit the alleged
act.
CONCLUSION
AND SUGGESTIONS FOR REFORM
Though
the concept of a presumption of innocence during a criminal trial was conceived
with the idea of preventing an innocent man from being wrongly convicted for a
crime he didn’t commit, in the case of rape, especially in Nigeria, this has
only served to allow “criminals” escape punishment. This even further allows
such individuals to become repeated offenders as they escape liability
10
Ibeakanna v. Queen (1963) 2 SCNLR p.191 11 (1916-17) All ER 38 12 Ibid. at 34
per Lord Reading CJ. 13 (2001) 14 NWLR (Pt. 732) 221 at 245. See also Simon
Okoyomon v. The State (1972) 1NMLR 292 14 Na’an Upahar & Or v. The State
(2003) 6 NWLR 254-256
either
due to a failure to report the rape, the incompetence of the investigative
officers who are pit in charge of the case or even the court’s attitude towards
the victims or the evidence adduced by the prosecution during the trial. To
this effect it begs the question whether the burden of proof in a rape trial
should shift from the complainant to the accused?
From
the above stated problems, (many of which could not be listed here by the
author) faced by the complainant in trying to get a rape conviction against the
accused, it would help if the burden shifted onto the shoulders of the
accused.
Firstly,
shifting this burden would go a long way in allowing victims be more open
towards reporting their cases. In the present dispensation, victims are well
aware of the difficulties they face in even having their reports taken serious
by a police force who more often than not ridicule them and blame them for
enabling their own rape. Such individuals who are supposed to help gather up a
case for the prosecution would, if the accused bears the burden of proof,
probably take their jobs more serious and be more receptive towards listening
to rape reports. This will also be further helped if the police force had more
female presence, as the majority of rape victims are female, these officers
will empathise with them and be willing to investigate their claims.
Secondly,
though newer criminal statutes such as the Violence Against Persons
(Prohibition) Act 2015 and the Criminal Law of Lagos State 2011 are more
progressive with regards to their provisions on rape and sexual offences, it is
suggested that the statutes governing rape and other sexual offences be revised
and enacted with proper regard towards the plight of victims in proving they
were raped and reference towards international best practices. These would
include a provision which shifts the burden of proof from showing that rape was
committed, to showing that rape was not committed, thus granting the victim
respite from having to go through a harrowing trial which would in the end not
favour her.
To
end it all, it can be seen that the current prevalent system is “anti-rape” as
it does not give a favourable climate to the victim who has gone through a lot
leading up to the point of trial. It is a system that largely favours the
accused, due in part to the fact that the burden of proof lies largely with the
complainant who must prove beyond reasonable doubt that the accused did commit
the alleged act. The suggestions outlined above, together with the criticism of
the current system will go a long way to improving the entire criminal justice
system towards rape as well as granting the victims proper reliefs.
Gani Fawehinmi Students Chambers
Faculty of Law
University of Lagos
