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It has been settled law over the years, based on the common law and indeed the provisions of the Criminal and Penal Codes that rape can only be committed by "any person who has carnal knowledge of a woman or girl (emphasis mine) without her consent.............." Section 357 of the Criminal Code, it is also settled law that as long as the perpetrator "penetrates" the vagina no matter how slightly, without consent or with consent when it is procured via the use of force, threat or misrepresentation, the of Fence of rape as defined by Section 357 of the Criminal Code has been committed.

This paper will attempt to x-ray the offence of rape as it exists in our statute books today, while making a case for a widening of the scope of the offence.

RAPE: Section 357 of the Criminal Code

Section 357 of the Criminal Code defines the offence of rape as follows:

"Any person who has unlawful carnal knowledge of a women or girl, without her consent, or with her consent, if the consent is obtained by force or by 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 in the case of a married woman by personating her husband is guilty of an offence which is called rape"

CAPACITY

Section 30 of the Criminal Code raises an irrefutable presumption of law as to the capacity of the "rapist". It stipulates that only an individual over the age of 12 can commit the offence of rape. Thus as long as an individual is under the age of 12 he cannot be charged for let alone be convicted for the offence of rape.

CARNAL KNOWLEDGE

Carnal Knowledge, which has been defined as "penetration" no matter how slight, must be proved.

In fact, it is unnecessary for the hymen to be raptured or that there be an emission of semen. Section 6 of the Criminal Code. The offence is therefore complete upon penetration which need not be more than a mere entering of the vulva or labia DE ARMOND V STATE, OKI Cr., 285 P. 2d 236

CONSENT

On a charge of rape, absence of consent is very germane to ground a conviction and until the prosecution is able to discharge the onus of proving that there was no consent on the part of the "woman or girl", its case must fail R V KUFI (1960) WN LR1. Consent obtained by force or by means of threat or intimidation or fear of harm is no consent. Consent given because of exhaustion after persistent struggle and resistance would also appear to be no consent.

To have carnal knowledge of a sleeping woman has also been defined as rape. Submission by a person of weak intellect or a person who is too young to understand the nature of the act is not consent. Again no consent is effective which is obtained by fraud relating to the nature of the act. R V FLATTERY (1877) 2 QB. 410

REDEFINING THE OFFENCE OF RAPE

It is unfortunate that the drafters of the Criminal Code have succeeded in drafting a law suggesting that for the offence of rape to be committed there must be penetration thus making it only possible for the offence to be perpetuated against a woman or girl. In this way, it has been accepted, erroneously, in my view, that a woman cannot rape a man.

To my mind the important ingredient of the offence of rape, ought to be unlawful carnal knowledge without consent In other words as long as an individual forcefully and fraudulently assaults another sexually, such an individual should be said to have committed the offence of rape whether there is actual penetration or not and not minding who is doing the "penetrating".

You will agree with me that even though women are in greater danger of being forced or fraudulently misled into sex without actual consent, it is also possible for a man to be forced or fraudulently procured into having sex without actual consent.

The present writer is of the view that Section 357 of the Criminal Code contemplates a situation where a woman or girl is hypnotized and sexually abused, as this will definitely be against her will, thus her not consenting to the act. Would it thus, not be only reasonable to take the view also that where a man is hypnotized and sexually abused, he can also be said to have been raped?

Again it is possible for a woman to procure a male who is of feeble mind and have sex with such a one who obviously not understanding the nature of the act will not be said to have consented to it. Such a woman should, in my view, be found guilty of rape.

A recent incident occurred in one of the states of the "Mid-West" recently, female Youth Corper using her position as a teacher in a Secondary School, procured this Secondary School student and "used him" to derive sexual pleasure for herself. Suppose it was a male Corper, he would have been said to have been guilty of rape as this would be a clear case of having unlawful carnal knowledge of a woman or girl without her consent, or with her consent where such consent is obtained by either force or intimidation. Why can this not hold true also for the young man who found himself hastily introduced into a world that was beyond his imagination by a "randy" female corper.

It is true that more often than not, men are stronger than women, but this like most generalizations is not entirely without exceptions. It is thus not out of place to find some women who are stronger than some men and who can "forcefully" procure such men to have sex with them without the "consent" of such men. Should this not be regarded as rape, for the mere reason that the perpetrator of the act had not penetrated her "victim" and also for the fact that her victim was not a woman or girl?

INCLUDING CERTAIN UNNATURAL OFFENCES IN THE DEFINITION OF RAPE

The present writer also of the view that the offence of rape should include the forceful procurement of any individual male or female by any individual male or female forcefully or without consent for the purpose of sexually abusing such a one.

This would mean that where an individual fraudulently or forcefully procures another individual whether they are of the same sex or not for the purpose of having "carnal knowledge" of such a on' the offence of rape would have been committed.

My definition of canal knowledge in this case would not be as restrictive as that given in the Black's Law Dictionary. It will be construed to include a situation where a female manipulates the sexual organ of another female in an attempt to derive sexual pleasure therefrom.

In the same vein "carnal knowledge" will include a situation where a man procures another man and forcsefully has "intercourse" with him by the use of threat, fraudulent misrepresentation as to the nature of the act, such a man should be found guilty of rape.

CONCLUSION

I wish to state that the definition as given to the offence of rape in our statute books today is very restrictive and it seems also to assume a lot which may not necessarily be true.

To my mind, rape goes beyond "penetration" and thus should have more to do with consent rather than "penetration without consent".

I wish therefore to suggest this more embracing definition of rape, which in my view should replace the position in Section 357 of the Criminal Code;

"Any person male of female who has unlawful carnal knowledge or who sexually abuses another person, male or female or who manipulates the sexual organs of another person, male or female, thereby gaining sexual pleasure from such an act, without the consent of such other person, or with the persons consent, if the consent is obtained by force or by means of threat or intimidation of any kind or by fear of harm or by means of false and fraudulent misrepresentation as to the nature of the act or in the case of a married person by personating either his or her wife or husband, is guilty of an offence which is called rape".

Mr. Kyon is a legal practitioner based in Kaduna