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Rape And Other Sexual Offences Under The Violence Against Persons Prohibition Law 2015: An Innovation… Mofoluwawo Oluwapelumi

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Rape And Other Sexual Offences Under The Violence Against Persons Prohibition Law 2015: An Innovation On The Criminal Code By Mofoluwawo Oluwapelumi Mojolaoluwa

Acts of violence within the human society have existed and continued from time immemorial, perhaps from the killing of Abel by his brother, Cain. Violence since this first traceable record has continued to present itself in different forms throughout history. As a result, the human society by the instrumentality of its governing apparatus has continued to make rules and regulations to curb these acts of violence, and maintain law and order. In 2015, the National Assembly passed into law under the presidency of Dr Goodluck Ebele Jonathan, a bill for an Act to eliminate violence in public and private life, prohibit all forms of violence against persons, and to provide maximum protection and effective remedies for victims and punishment of offenders, and related matters. An outstanding feature of this law is that it is not only preoccupied with punishing offenders, but as well offers maximum protection, and effective remedies for victims. Till date, at least 10 states of the federation have adopted the VAPP law. This discourse will however focus on the VAPP Act of the Federal Capital Territory, Abuja.

The Violence Against Persons Prohibition Act (VAPP Act) defines ‘violence’ as any act or attempted act, which causes or may cause any person physical, sexual, psychological, verbal, emotional or economic harm whether this occurs in private or public life, in peace time and in conflict situations. The VAPP Act created twenty-six offences majority of which are, or are directly or indirectly connected to, go hand in hand with, facilitate, are precursors to, or are consequential to sexual offences. This is not to say that all acts of violence against persons are sexual in a nature. Rather, the law has proactively covered some areas left out by the Criminal Code as far as sexual offences are concerned.

Take rape for instance, by S357 of the Criminal Code, Rape is defined thus:

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 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 personating her husband, is guilty of an offence which is called rape.

Under the VAPP law however, rape is defined in S1 thus:

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 or 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.

This provision is undoubtedly a game changer as it now accommodates certain important features not found in the Criminal Code. While the Criminal Code only recognizes female rape, the VAPP law provides for rape of either sex which means that both male and female can be victims and perpetrators of rape. Consequently, penetration can now be performed with other parts of the body other than the ‘penis’, and on other parts of the body.

The VAPP law prescribes imprisonment for life as punishment for rape just like the Criminal Code but specifies a minimum of twelve (12) years imprisonment without option of a fine, unlike the Criminal Code. It also specifies the maximum of 14 years imprisonment for offenders below the age of 14. And goes further to create the offence of group rape more popularly known as gang rape, for which offenders are to be liable jointly to a minimum of 20 years imprisonment.

Another important innovation by the VAPP Act is the creation of the offense of female circumcision or female genital mutilation. This is not found in the Criminal Code. The act of female circumcision has been identified as a harmful cultural practice within Nigerian societies with detrimental health and psychological effects on the girl child. S46 of the VAPP Act defines circumcision as the cutting off of all or part of the external sex organ of a girl or woman other than on medical ground. S6 of the VAPP Act prohibits the circumcision or genital mutilation of a girl child or woman with stringent penalties against perpetrators, and anyone who engages, attempts, incites aids and or abets the offense. It is reassuring to find that there is a law that now contemplates this age long detrimental practice with a view to curbing it.

Stalking is another interesting offence created by the VAPP Act. S46, stalking defines stalking as repeatedly watching, or loitering outside of or near the building or place where such person resides, works, carries on business, studies or happens to be; or following, pursuing, or accosting any person in a manner which induces fear or anxiety.

The offence is punishable with a maximum of 2 years imprisonment and a maximum fine of N500,000 (S17, VAPP Act). I find this provision very innovative and helpful because sexual offences such as rape are sometimes preceded by stalking. And it is important for an act which puts a potential victim in perpetual fear, as this one, to be actionable, so as to forestall the completion of the mens rea of rape. The Act as well punishes the aiding and abetting, or attempt at stalking.

Indecent exposure is another offence created by the VAPP Act. Although s231 of the Criminal Code punishes indecent acts in public places, it does not exactly define the meaning and scope of the indecency, a gap which the S26 of the VAPP Act has now filled. Indecent exposure is defined as the intentional exposure of the genital organs, or a substantial part thereof, with the intention of causing distress to the other party, or that another person seeing it may be tempted or induced to commit an offence under the VAPP Act. Exposure of the genitals which induces another to either massage, or touch with the intention of deriving sexual pleasure from such acts is also an offence and both are punishable with a term of imprisonment not less than a year, and or a fine of N500, 000. Now this is more rampant than one can imagine. There have been several incidences, reported, of males whipping out their external genital organs much to the chagrin of distressed females and vice versa, in which case the victims can only either run away or ignore such acts of indecency, without any legal remedy. This should however not be taken as a defence to rape or any other sexual offence.

One finds it interesting as well that s22 of the VAPP Act creates the offence of administering a substance with intent, which would prove useful for situations where this offence is carried out as a build up to the offence of rape. In the event that the mens rea to rape is not successfully carried out, a victim can as well get remedy, and the perpetrator punished accordingly. Although s224 (3) of the Criminal Code makes similar provision, as with rape, it specifically accommodates only female victims which would mean that where a male is a victim, he has no legal remedy as in a situation where he is eventually raped. Even in the case of a female victim, the proviso as to corroboration might eventually hinder justice.

Incest is another offence so rampant one would expect the criminal code to not only create but prescribe punishment for, yet, no mention is made of it in the code. The VAPP Act however criminalises deliberate carnal knowledge with or without consent, within prohibited degrees of consanguinity/affinity as defined in its schedule and prescribes a minimum punishment of 10 years without option of a fine, S25, VAPP Act.

It is important to note that a good number of other offences created by the VAPP law such as forceful ejection, forced isolation or separation from family and friends, emotional verbal and psychological abuse, harmful widowhood practices, abandonment of spouse, children, and other dependants without sustenance inter alia, are connected in one way or the other to sexual offences. They are most times either precursory or consequential to sexual offences recognized by the Act. As a matter of fact, some of these other offences such as forceful ejection, emotional, verbal and psychological abuse force victims of sexual offences into silence, thereby denying them justice, and encouraging the offenders to continue, unpunished.

The VAPP Act goes further to allow a complainant file an application for protection orders28. This protection order is an official legal document, signed by a judge that restrains an individual or state actors from further abusive behaviour towards a victim, s46. A victim can make this application before the High Court, Abuja, and is not bound by any time limits within which to make such an application. Once granted, it is enforceable throughout Nigeria.

Perhaps, the most important provision of the VAPP Law is that it supersedes the Criminal Code, s45(2). It is hoped that this law will be sufficiently tested in court and by the resulting judicial precedence, expand the frontiers of our jurisprudence, in Nigeria.

MofOluwawo Oluwapelumi Mojolaoluwa is a legal practitioner based in Lagos, Nigeria. She runs a content creation outfit called Houseoflivingstones, and as well consults for small businesses on branding and business development. She can be reached at houseoflivingstones@gmail.com.

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