Spousal rape and the need for constitution amendment

Section 282 of the Penal Code and section 357 of the Criminal Code exempts perpetrators of rape within marriage from punishment. RUTH OLUROUNBI examines rape in Nigerian marriage and the need for a protective legal system in the constitution.

The scars on Temilade Temisan’s necks and breasts are a painful reminder of a past filled with violence and fear. While tied to the bedposts, Temisan’s husband brutally beat and raped her, leaving her bloody, bruised and severely injured body on the floor in their Abuja home.

The 2002 incident began, she told the Nigerian Tribune, after her refusal to have sex with her husband, Anthony, on the grounds that she was not physically or emotionally able to perform her marital rites. Anthony’s anger was kindled, calling her names, some of which are quite unprintable, she recalled.

In the years the assault continued, Temisan said she lost her essence as a human being. In addition to the rape itself, she said she was forced to comply with “horrible deeds designed to further humiliate me.” Explaining, she said her husband would urinate on her, “acting out a fantasy of a torturer he had seen in pornography videos. It got so bad that he would make me watch them. If I said no, he would beat me. He would chain me to the bed as if I was a dog and would rape me as many times as he wanted.

The day he tried to rape me with a bottle was the day I decided I had had enough and ran away. It took me years of therapy abroad before I finally got the strength to want to live again because in all honesty, I wanted to die. It was as if I was living in hell.”

One would ask why Temisan would endure that much in an obviously abusive marriage. “The way I was brought up, divorce or separation was not an option. Even if I wanted to leave, I couldn’t. My husband made sure we operated a joint account, So I couldn’t withdraw money without him noticing. I didn’t have money to run away and I couldn’t tell my family or friends what was happening to me without feeling shame and embarrasement. I just couldn’t,” she explained.

When asked why she decided to speak now, she said because “I saw it on your Twitter timeline that you needed a credible story to back your story up and because I figured if the authorities would take this issue seriously and make laws that would protect abusive women in their marriage.”
Would she allow herself to be photographed, she said she hasn’t quite got there yet.

Sadly, Temisan’s story is not uncommon among Nigerian women or women in different countries in general. Studies have shown that 15 to 25 per cent of all married women have been victims of spousal rape and some scholars suggest that this type of rape is the most common form in a given society.
Few weeks ago, another woman in Lagos told of how she had endured five years of brutal assault and rape in her marriage. Her husband, she said, didn’t care whether or not she wanted to have sex with him whenever “he wanted to relieve himself.” The woman, who initially did not want to have a facial interaction with the Nigerian Tribune due to what she termed as “shame and humiliation of actually facing” what she had lived through “with another human, let alone talking about it,” recounted that two years into her marriage, things had been good with her husband until he lost his business.

She said initial changes were mood swings, anger and frustration. “Those feelings were understandable, considering he had just lost his business of several years. But then, things began to get worse when my husband accused me of being behind his business collapse. He said he went for some consultation, he was told that I was the reason behind his many problems and he said I should release him from the bondage I had put him through,” she said, with a sigh. When asked if she actually knew anything about the problems, she was indignant. “How could I? He is my husband for crying out loud!” she retorted.

Gathering her strength, she continued with a shaky voice and tears in her eyes that, “eventually, things got pretty worse and he would lash out at me. I went to my parents, who told me to be patient with him. Things got better along the way, his business came back and boomed but he still won’t stop beating me. Several times, our respective relatives would come help us settle quarrels and he would promise to change but he wouldn’t.

Hell was let loose after we mysteriously lost our first child. But before that, I need to tell you that my husband would not touch me for several months. Sometimes when he did, it would have been after several pleadings and tears. And when he would eventually consent, he would be very mechanical about it.

“So, a few months after we lost our child, he came home very drunk one night and said we should try and make another baby. I told him I wasn’t ready to have another child yet, considering I had just lost my first child, besides; I was still mourning the loss of my child. That night, he beat me blue black and raped me. And that has been going on for a while now.” She concluded, this time, sobbing silently.

When pressed further, she showed bite marks on her thighs, buttocks and some other ugly bruises. But didn’t she report to the police? “How could I report my own husband for raping me?” she queried. “Besides, if I did,” she continued, “who is going to believe me? I did some research on the issue and I found that even if I did report him, there was no way he could be prosecuted.”

Giving a reason why victims of spousal rape do not come forward, a sociologist from Lagos State, Dr Taiwo Oladipupo, said “it is because of the shame. And she couldn’t leave the marriage either. Once a woman is married, she’s expected to stay married, no matter the circumstances.

She added that “the sad thing is, the victims’ relatives put these poor people under immense pressure not to disturb the family peace or bring shame on the family and as such, they are made to endure whatever form of violence.”
Rape, according to the Amnesty International, is non-consensual sexual acts which include intercourse, anal or oral sex, forced sexual behaviour with other individuals, and other sexual activities that are considered by the victim as degrading, humiliating, painful, and unwanted.
To the Brisbane Rape and Incest Survivors Support Centre in the United Kingdom (UK), rape is “when someone uses their power, manipulation or force to intimidate, humiliate, exploit, degrade or control another. Rape has been used as a weapon in war, in racial violence and in everyday life.
Rape diminishes a person’s dignity and their human rights to safety, choice and consent.”

Marital rape or otherwise known as spousal rape, therefore, is non-consensual sex in which the perpetrator is the victim’s spouse. It is any form of unwanted sexual behaviour that is imposed on someone, in the words of Mr Eze Amadi, a family lawyer based in Lagos. According to him, rape is rarely about sexual attraction or a desire to get sexual gratification, but more about the abuse of power.

Rape is a crime, Amadi said, adding that “it is a very personal and intimate traumatic experience for the victims.”

According to Rape, Abuse & Incest National Network (RAINN), the largest anti-sexual violence organisation in the United States of America (USA), marital rape is a “form of intimate partner violence, that is an abuse of power by which one spouse attempts to establish dominance and control over the other. Research shows that it can be equally, if not more, emotionally and physically traumatising than rape by a stranger.”

Although rape within marriage is somewhat tricky to define, it is a reality many Nigerian women have had to live with or live in, depending on if they found the courage to leave the abusive marriage and move past the trauma or not, pyschologist said.

Marital rape is a serious form of violence that can have life-shattering effects for its victims, Hidden Hurt - Domestic Abuse Information, based in the UK, said. The non-profit organisation said on it’s website, hiddenhurt.co.uk said the crime is “so destructive because it betrays the fundamental basis of the marital relationship, because it questions every understanding you have not only of your partner and the marriage, but of yourself. You end up feeling betrayed, humiliated and, above all, very confused.”

To lend credence to an article it titlted Marital Rape and posted on its website, a victim was quoted anonymously to have said that “when it is the person you have entrusted your life to who rapes you, it isn’t just physical or sexual assault, it is a betrayal of the very core of your marriage, of your person, of your trust.”

In the Nigerian society, it is quite  inconceivable that a partner would commit rape in marriage. But from findings, marital rape is very much in Nigeria and it is growing by the numbers.

Dr Hakeem Lawal, a gyneacologist said in his 20 years of medical practice in Nigeria, he had seen several cases of marital rape from his patients.

Speaking further, while being careful not to betray the doctor-patient confidentiality clause, Lawal said many of his patients have been brought to his hospital testing positive to violent rape. Violent rape occurs, according to him, is when the abuser uses enough physical violence to cause injury to the victim, apart from any injuries due to the rape itself that is injuries to the genital areas.
Abusers, he said, often subdue their victims with punches, inflict injuries with a knife, beat or kick their victims until submission, the doctor explained. “I have seen wives brought to our hospital with broken ribs, missing teeth and swollen faces and in some cases, when we check them for rape, we discover to our anguish that they have been violently raped,” he added.

He expressed sadness that the law does nothing to protect the victims. “If it does, maybe we will find someone willing to come forward and prosecute her husband and that could serve as deterrent to other husbands who are doing the unthinkable to their partners.”

He pointed that husbands can be victims of marital rape, although women are more at the receiving end that the men.  
Marital rape and the Nigerian law
The Section 282 of the Penal Code and section 357 of the Criminal Code exempts perpetrators of rape within marriage from punishment.“Under Nigerian Laws in both section 357 of the Criminal Code and section 282 of the Penal Code, a husband cannot be charged with marital rape. Once the marriage is subsisting and the wife has attained puberty, then any sexual intercourse with her is never rape,” the Secretary Generals database on violence against women, reported.

In most cultures in Africa, especially in Nigeria, what is called marital rape remains ambivalent in people’s minds, and is widely tolerated and accepted as a husband’s prerogative. And it is no doubt why it is difficult for a married person to accuse their partners of rape, non government agiencies have agitated.

Back in the 18th century, in the USA, there existed a concept called “marital rape exemption” which was embedded in the sexual assault laws of the country. It was known as common law, articulated by English Jurist, Mathew Hale, that “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.” But in 1976, this position was abolished with Nebraska being the first state to abolish the marital rape exemption, while other states slowly followed.

But with the Nigerian constitution, it seems marital rape victims are still in for a long haul. The penal code provides in section 282 (1) that “A man is said to commit rape who save where he had sexual intercourse with his wife, ...” Move down a little bit to the section 282 (2) of the penal code, it states expressly that sexual intercourse by a man with his own wife is not rape, if she has attained puberty.

In the criminal code Act which governs the criminal law section S.357 stipulates that “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.”

It, therefore, means that in Nigeria, “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),” to John Chidi Enyie, a lawyer and social commentator, said.

“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,’” he added.

Elnathan John, a writer and lawyer, based in Abuja, wrote that “one reason for a husband’s legal and social immunity from rape is our cultural attitude toward women in general. A man is viewed as master over a woman – a position reinforced by culture, religion and even law.

“I have never been able to get over the shock of Section 55 (1) (d) of the Penal Code which states that ‘nothing is an offence which does not amount to the infliction of grievous hurt upon any person and which is done by a husband for the purpose of correcting his wife, such husband or wife being subject to any native law or custom in which such correction is recognised as lawful.’ This section places women in the same category as children receiving corporal punishment.”

Explaining, he said “there are two grave implications of this section. One, that it permits the husband to beat his wife or otherwise ‘correct’ her as long as he does not injure her. Two, it upholds any native custom that allows such beating or other violence against women. Thus a man, if he considers rape to be a corrective tool for her say, denying him sex may lawfully do so under the law.

“Section 282 of the Penal Code, governing the North of Nigeria and Section 357 of the Criminal Code, governing the South, both exempt a husband from the definition of the offence of rape. In other words, a wife has by marriage sold herself into sexual slavery and does not have the right to say no.”

He objected that marital rape should be seen as what it is. “Rape. Sexual violence. It is not African. It is barbaric and does not belong in any human culture. “Even if it is condoned by some of our cultures, it is our place to end those cultures. To use the legal cliché , any culture that is “repugnant to natural justice, equity and good conscience” should be discarded in favour of one that shows respect and dignity to all persons regardless of gender, circumstances of birth, or other differences. “We must remember also that culture is fluid. It is not immutable but is a reflection of the ideals of a people over time. Our culture must reflect sane ideals, not practices that make slaves of women,” he concluded.

Why the law should protect victims of marital rape
No doubt, rape by a stranger is clearly rape and it would be easier for the victim to deal with the stigma when the perpetrator remains a stranger. But how can one handle rape and other forms of sexual abuse from her husband? Marital rape affects women, their children and the community,” a psychologist wrote on national newspaper.

The person added that “victims of marital rape lose confidence and may suffer from physical and mental illnesses. Unfortunately, there are hundreds of women who are ashamed to talk about what is happening to them because the society generally views it as unconceivable for a husband to rape a wife,” someone wrote on a national daily.

Crimes of rape are seriously under-reported, and the perpetrators are rarely brought to justice, non government agencies like CEDAW and Amnesty International have noted.

But why? A cursory look into the silence revealed that many women don’t feel safe enough to confide in the police because they will not be taken seriously.

When asked, police officers who didn’t want their names in print said there’s no way a married person could accuse their partner of rape and they would believe them. Apart from this, psychologists and sociologists have both agreed that because of the dynamics of the Nigerian culture, it is a shame for a married woman to leave her husband, therefore they stay in abusive relationships.