Rape is generally recognized as forcing sexual intercourse on a person without their consent, or with their consent where there exist any factors that can vitiate such consent e.g. force, threat, intimidation, abuse of authority, deception or where the consent giver is legally incapable of giving consent due to mental capacity, age or being semi-conscious.
Traditionally, rape which is the most serious kind of sexual assault could only be committed by a male upon a female. In today’s world rape can be committed on any person by any other person. While this latter statement may be true under the laws of some countries, it is a sad reality that the former statement, being the traditional viewpoint of rape, is what still obtains in Nigeria.
A quick overview of Nigeria’s rape laws
In Nigeria, every state has its own system of laws governing the conduct of residents in that state. Crimes are governed by the provisions of the criminal or penal laws of the various states. States in northern Nigeria operate their various Penal Code Laws while the states of southern Nigeria operate their various Criminal Code Laws. The Penal Code Laws of the northern states largely follow the provisions of the Penal Code Act, a federal law, while the Criminal Code Laws of the south are modelled like the Criminal Code Act (CCA) which is also a federal law. This Article will discuss Nigeria’s rape laws first from the perspective and provisions of the Criminal Code Act, though it is necessary to mention that the Penal Code also restricts the perpetrator of a rape to a male person and does not envisage that a female can rape a male.
What constitutes rape is contained in section 357 of the CCA, the section provides as follows:
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 any 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, is guilty of an offence called rape.
Under the CCA the punishment for rape is imprisonment for life, with or without caning. An attempt to commit the offence of rape is punishable with imprisonment for fourteen years, with or without caning.
It should be clearly noted that by virtue of the provisions of section 357 of the CCA, rape can only be committed on a woman or girl. Thus, a woman or girl cannot be found guilty of committing rape upon a man or boy as the section does not provide that a man or boy can be raped.
A much recent Nigerian law, the Violence Against Persons (Prohibition) Act (VAPA) which came into force in May 2015 tried to fill this loophole in the law. The objectives of the VAPA according to its preamble is to eliminate violence in private and public life, prohibit all forms of violence against persons and to provide maximum protection and effective remedies for victims and punishment of offenders; and for related matters.
In keeping to its objectives, section 1 of the VAPA provides for what constitutes the offence of rape. Section 1 subsection 1of the VAPA provides:
(1) A person commits the offence of rape if-
- he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else;
- the other person does not consent to the penetration; or
- the consent is obtained by force or 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 the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.
At first glance, section 1 subsection 1 the VAPA appears to cure the defect in the CCA by use of the words “he or she” and “of another person”. It appears to provide that rape can be both ways. However, upon a thorough consideration of the section it is clear that a female cannot be found guilty of committing rape upon a male in the strict sense i.e. unlawful sexual intercourse.
First, section 1 subsection 1 subsection (a) provides that the victim’s vagina, anus or mouth must be penetrated. Needless to say, a male person does not have a vagina; this fact leaves us with the male’s anus or mouth. The section goes further to state that the anus or mouth has to be penetrated with any other part of the perpetrator’s body or anything else. While this makes perfect sense where the rape is a male-on-male or male-on-female incident, it does not make any sense where the perpetrator is a female and the victim is a male.
A female does not have a body part that can penetrate a male’s anus save for her fingers and maybe tongue and toes. By the provisions of section 1 of the VAPA, a female can only be guilty of raping a male anally where she unlawfully penetrates the male’s anus with her fingers, tongue, toes or any other foreign object (e.g. a Dildo).
Also, a female will only be guilty of raping a male by penetrating his mouth where she inserts her breast, fingers, toes, tongue or even her vagina or other foreign object into the male’s mouth. The absurdity of this scenario (and by extension, what constitutes rape of males under the VAPA) can be pictured in two instances:
- If a female inserts a stick into a male’s mouth without his consent or where such consent is obtained via any vitiating factor, is that rape, a trespass to person or just a mere assault? By the provisions of this section, that will be rape.
- Where a female in kissing a male penetrates his mouth with her tongue or puts her breast into a man’s mouth without his consent or where such consent is obtained via any vitiating factor, she can be charged for raping the male person.
From the foregoing, it is clear that these laws do not recognize the fact that a woman or girl can engage in sexual intercourse with a man or boy without his consent or with his consent where such consent is obtained via any vitiating factor.
The problem lies in the word “Penetration” which by definition must encompass an entering into. Proof of penetration is vital to the success of the prosecution of an accused person and this fact reflects in the laws providing for rape. In Nigeria, there cannot be rape without penetration. In fact, the most important ingredient to prove the offence of rape is penetration.
A female cannot penetrate the penis of a male with any part of her body, though she can penetrate the penis of a male with a foreign object but the VAPA unfortunately does not include the penis as any of the body parts that can be penetrated.
It becomes clear that a female cannot rape a male in the strict and traditional sense of unlawful sexual intercourse. The Nigerian law on rape is obviously biased towards females. A female may however be charged with the rape of a male where she aids a male-on-male rape on the principle that a person who aids in the commission of an offence is as liable as the actual offender.
The way forward
Sometime in 2004, there was unreported news about a male student who was drugged with substances that left him sexually aroused and semi awake for several hours while he was gang raped by a group of females. It was said they inserted his penis into their vaginas and raped him for hours. While this author cannot vouch for the veracity of this news, it nonetheless presents a very conceivable situation. There are also various instances of adult women having sexual intercourse with underage boys. These incidents are not brought to limelight because of the sad reality that female-on-male rape is under reported and under researched. A study by the Centers for Disease Control and Prevention (CDC) found that one in 17 men reported being made to sexually penetrate at some time in their lives and that these males often reported only female perpetrators in these instances of being made to penetrate.
A male can be raped by being made to penetrate with his penis, the vagina, anus or mouth of a female. The Nigerian laws on rape are in need of a modification to reflect this harsh reality, the laws need to include unlawful sexual intercourse perpetrated by a female on a male which can have the same psychological effect on males as it does on females. Males also can be traumatized and develop post-traumatic stress disorder as well as be at risk of sexually transmitted infections etc. and as such there is no reason why the laws should not provide for their protection.
Busa Inem is a Nigerian Legal Practitioner who has been in active legal practice since December 2016. He is the author of several articles mostly on ICT/Communications Law subjects but he
writes on other subjects also. June 2019
 Cap. P3, Laws of the Federation of Nigeria 2004
 Cap. C38, Laws of the Federation of Nigeria 2004
 For example, Section 282 (1) of the Penal Code Act applicable to Nigeria’s Federal Capital Territory, Abuja which provides for the offence of rape begins with the following words “A man is said to commit rape who… has sexual intercourse with a woman in any of the following circumstances….”
 Section 358 of the Criminal Code Act
 Section 359 ibid
 See also Section 258 of the Criminal Code Law (Cap. C17) of the Laws of Lagos State of Nigeria which provides for the offence of rape in Lagos State and begins with the words “Any man who has unlawful sexual intercourse with a woman….”
 R v. Francis Kufi  W.N.L.R 1.
 Musa Natsaha v. State  LPELR-42359 (SC); Ndewenu Posu & Anor v. The State  LPELR-1969 (SC); Iko v. The State  14 NWLR (Pt. 732) 221
 Smith, S.G.; et al. (2012). “The National Intimate Partner and Sexual Violence Survey: 2010-2012 State Report” Atlanta: Division of Violence Prevention, National Center for Injury Prevention and Control,
Centers for Disease Control and Prevention. pp. 25-26, 31-32. Retrieved 25 June 2019