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by Abigail Anaba
Discussions on rape and sexual harassment often devolve into verbal fisticuffs. For this reason, some persons choose not get involved in these conversations.
Each group digs into their trench refusing to hear the other over the emotionally charged din. Bola (Real name withheld) says she does not discuss rape in public anymore.
According to her, such conversations serve no purpose. “We already know what everyone is going to say anyway, so why bother?” Despite the toxicity of these conversations, there are questions that cannot be ignored.
For example, what constitutes sexual harassment and how is consent conveyed? Are there nuances that should be taken into consideration? “The issue is that in Nigeria, we all know that a woman doesn’t like to be seen as cheap by easily saying yes. So if she verbally says no, but all evidence by conduct points to the fact that she means yes, then it will be taken as consent,” says Marvin (name has been changed).
To argue against the existence of nuance in sexual relationships is to be blind to our socio-cultural dispositions. In certain contexts, as Marvin points out, it is difficult to ascertain whether no means no, or try harder.
Or, as another respondent puts it, “when you have been in a relationship with someone – like we have in marriage – you will be able to tell ‘contextually’ when their ‘no’ means ‘no’.”
However, in a sexually liberated world, where persons can have sex at the first meeting, individuals are carrying over old experiences into new relationships. This is problematic. “Given the nature of the act of sex, the nature of the sexes, the woman ‘needing’ to be wooed and the man knowing that he has to woo his woman; the usual hide and seek; and clarity of communication, consent is always a murky water in practice,” says Mike.
Yet, the fact remains that consent must be conveyed clearly, unequivocally. Both men and women need to learn how to say no and what to do after saying no. As one respondent asked, “when a lady says ‘no’ to sex in a sexually charged atmosphere, should she still remain in that situation?” remaining in the situation after saying no may give the impression that either party wants the other to try harder.
While these issues may seem “murky,” men in particular, need to be aware of sexually aggressive behavior. NewsWireNGR spoke to a cross section of women and asked them what would constitute harassment. They said: catcalling is never acceptable; dragging and hovering over a lady is intimidating.
Following a lady around AFTER she has CLEARLY said not to is harassment.
“Here again nuance comes in,” says one of the men we spoke to. “Some women will say no ten times and say yes the eleventh. Is it wrong to keep asking?” Yet, it is best to have clear, unequivocal consent at each stage of the sexual act. When in doubt, keep out! Nigeria may not have the best laws on rape and sexual harassment but it is clear about the consequences of being convicted.
At the Federal level, there are three pieces of legislation in Nigeria that directly speak to sexual crimes against women. These are the Violence Against Persons Prohibition Act, (VAPP) the Criminal Code, and the Penal Code. Of the three, VAPP is the most forward looking when it comes to clarity of language and purpose.
Unfortunately, the provisions of that Act can only be applied to the FCT, Abuja. If a sexual crime were to be committed against anyone anywhere else, the most likely piece of legislation that will be used against them would be the Criminal Code, if they live in the south of Nigeria or the Penal Code if they live in the north.
The Criminal Code defines a rapist in Chapter 30, Section 357 as “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.”
But, the section does not define what “consent” means. “Consent (should) represent the agreement of both parties to engage in sex by freewill, without cohesion or inducement. Without which rape crystallizes,” say Solomon Apenja, a lawyer and Children and Women’s Rights advocate. But he is quick to acknowledge that in practice consent may not be so clear. The parties involved may be reading or misreading nonverbal cues. Section 358 outlines that a person found guilty of rape is liable to life imprisonment, while one found guilty of attempted rape will face a seven year jail term.
However, sexual assault is termed a misdemeanor with a two year jail term according to Section 360. A representative of Gavel.ng explains the difference between rape, attempted rape and sexual assault. “Rape is when penetration is full, attempted rape is when the person did not succeed in raping but was actually close to. For example, the person has pulled his trousers, brought out his manhood but only penetrated the labia minora.
Sexual assault is the indiscriminate touch of another, like touching the buttocks, breast, and sexual organs.” Section 282 of the Penal Code provides that a man is said to commit rape who has sexual intercourse with a woman in any of the following circumstance: against her will; without her consent; with her consent, when the consent is obtained by putting her in fear of death or of hurt. Others include with her consent, when the man knows he is not her husband and that her consent is given because she believes herself to be lawfully married; with or without her consent, when she is under 14years of age or of unsound mind.”
While some have argued that theoretically fourteen years has been prescribed as the age of consent, Mr Apenja insists this is not the case in practice. “[This section] has been used as an argument in support of child marriage. My point however is, of the cases I have seen, sex with a minor has always been actionable in court against the adult, and ‘she agreed and we did it wilfully’ has never been a defense available to an adult who has sex with a minor.”
As in the Criminal Code, the penalty for rape is life imprisonment. But, this penalty is not mandatory and rarely is it applied. “I have rarely seen wins, I must confess. Most of those cases are bungled up by shoddy investigation with badly handled evidence, messed up prosecution.”
Persons who have been raped and their families need to remember penalties can only be applied where a conviction has been made. In the same vein, a conviction cannot be made when a case is not tried in a court of competent jurisdiction.
It has often been repeated that it is very hard to get rape convictions. A number of reasons have been given for this, “Proper test of victim to ascertain fact of forced or cajoled penetration; proper appreciation of the law of evidence and the tendering of evidence” have not been carried out. Gavel adds, “The first point of contact should be a police station and the police should immediately take the person to a hospital to collect evidence. The doctor is to examine the body for bruises, and the sexual organs for signs of forceful penetration – for example bruises. Also, sample of leftover semen should be taken and preserved for DNA analysis.
Even if the victim cannot go to Police, let her start from the Hospital and follow through with the doctor.” The actions that women are expected to take after being raped is counterintuitive. A lady so defiled would want to clean up herself as soon as possible. But this is not the best action to take. It is also important to get a good lawyer.
Mr Apenja says, “I was involved in a case, as counsel to defendants. As much as I was inclined to believing the story of my client that they didn’t do the crime, the prosecution yet messed up their case by not properly preparing the two victims as to their line of stories. It was easy to knock out their case on simple questions like colour of curtain, size of mattress and whether the accused persons’ family was not present at time act allegedly occurred.”
Obtaining convictions is an impassioned process based on evidence. There will be questions to establish motive. Stories will be scrutinized, inconsistencies will be analyzed. If we choose not to have conversations that expose the nuances of sexual relationships, victims will be shocked at the level of scrutiny they will receive in court.
PLEASE NOTE: Reporting rape can be a very emotional and difficult thing to do, so you should consider getting support from organizations : Mirabel Centre – http://mirabelcentre.org/, where rape and sexual assault victims can get access to forensic medical assistance and more importantly professional counselling services. They are on Twitter: @MirabelCentreNG and Facebook:
www.facebook.com/MirabelNigeria. StandtoendRape – http://standtoendrape.org/, youth-led organization promoting human rights, SRHR & an end to GBV through advocacy & support. They are on Twitter: @StandtoEndRape; and Facebook: www.facebook.com/StandtoEndRape.