1. SPOUSAL RAPE IN NIGERIA: MYTH OR REALITY
Spousalrape which is also known as marital rape is non-consensual sex in
which the perpetrator of the act is the victim’s spouse. It has also been defined
as any unwarranted, undesired sexual act by a spousewhich is committed
without consent, or against the person’s will1. It also includes all forms of oral,
anal sexual intercourse.
The United Nations declaration on the elimination of all forms of violence
against women (the 1993 declaration) recognises spousalrape as a form of
violence against women. In its Article one it states that violence against women
shall encompass but not be limited to spousalrape. This paper shall attempt to
discuss spousalrape, the issues associated with spousalrape, spousalrape in
England and in the United States of America, as well as the position of the law
on spousalrape in Nigeria.
THE MARITAL EXEMPTION CLAUSE
The marital exemption clause was propounded bya foremost English Jurist Sir
Matthew Hale in his
Book History of the pleasof the crown (1736) had stated that:
………’’ Butthe husband cannotbe guiltyof a rape committed byhimself
Upon his lawful wife, for by their mutualmatrimonial consentand
Contract, the wifehas given up herself in this kind untoher husband
Which she cannot retract.’’
This proposition by the eminent Jurist was responsible for the adoption of the
marital exemption clause thus rape was defined under English law as excluding
marital relations it became the law, and was thus reflected in a prominent text
written by an English scholar Archibold in (1822), titled A Summary Of the

2. Law Relative to Pleading and Evidence in Criminal Cases:stated as follows
‘’ A man cannotbe guiltyof rapeupon his wife’’.
Hale’s theory was that it was impossible for a man to be convicted for raping
his wife, because when a woman enters into marriage with a man she had done
so by giving her consentand such consent was final, and thus the issue of rape
could not arise. Hale’s treatise became the foundation for the marital exemption
clause and was embedded into English common law the only situation in which
a spousecould be convicted of rape was where the husband was not the actual
perpetrator of the rape, where he had procured a third party he could only be
guilty of procurement but never of actual rape itself because he could not be
guilty of rape of his own wife. It is interesting to note that Hale’s principles did
not only apply to English Law but subsequently it was responsible for the
adoption of the marital exemption clause in the American legal system as well.
1.1 RELIGIOUS AND CULTURAL FACTORS
Religion and culture play a vital role in spousalrape in Nigeria; this is
because Nigerians are influenced greatly by religion and by our cultural
backgrounds. In our cultural society which is mostly male dominated the man is
seen as the supreme head and ruler of his home and his wife as under his
authority, it is also important to point out that marriage traditionally was
without the consent of the woman. A female was raised to be of good behaviour
and upon the attainment of adulthood her parents would choosea spousefor her
with or without her consent she was more or less the property of the man and it
was almost even not impossible for a woman to even refuse her husband.
Times have changed women nowadays are not always forced but still the
society in which we live has not changed its views as a study conducted bya
group in Nigeria showed men where asked questions and the responseof one of
the participant summarises completely the views held by men in the society
below is response:
RESPONDENT1.
‘’An averageNigerian womanissocialized in a waythat she shows a
resistance

3. To sexual advancesbythe opposite sex, so she does not look or behavecheap.
My sexual advancesto my wifehas mademerealise that her reluctance
meanscontinue.’’
The Bible in 1st Corinthians 7vs 5, states that a woman’s bodybelongs to her
husband and vice versa, it goes further to admonish couples not to refuse or
deny themselves of sexual intercourse. This scripture has been interpreted to
mean that a woman cannot deny or refuse to give consent to her husband what
is rightfully his, could this have been the intention of the scripture? I do not
believe so because reading the entire verse the writer of the book of Corinthians
further stated that this was to ensure and guard against adultery, and he even
went further by saying that couples could abstain during the period of a fast.
THE FEMINIST MOVEMENTOF THE 1960sAND THE 1970s
The advent of the 60s and 70s saw the evolution of the feminist movement as
women began to challenge the traditional role of women in the society and push
for equal rights for women, and men, the rights of women to vote, sexual
reproductive rights, freedom to chooseand determine their sexual relationships.
They raised the issues of the elimination of all forms of violence against
women, and the fact that women were more than just mere properties to be
acquired by men. That a woman had sexual rights to refuse her husband and
criticised Hale’s theory as it subjugated women and demeaned women reducing
them to lesser vessels than men. Feminists such as Stanton, Lucy Stone etc.
brought this and more issues to the public fore. The resultant effect of this was
that countries began to change their views on spousal rape, statutes were
changed and the exemption of a married spousefrom liability for rape began to
change as well, Hale’s theories were criticised, and in various countries began
to change their stance on spousalrape and it became suddenly possible that a
man could after all rape his own wife, and that a wife could validly refuse her
consent and if the husband persisted it would be deemed as spousalrape. It
wasn’t however until the 1990s that the issue of spousalrape was revisited
under the English Law, in the celebrated case of RVR. The United Nations
conference on the elimination of all forms of violence against women
recognised spousalrape as a form of violence against women and the need for it

4. to be criminalised amongst member states. In 2006 at a United Nations summit
the Director General of the United Nations stated that…. ‘’maritalrapemay be
prosecuted in 104 memberstates’’. It is a laudable development and even more
interesting to note that there are African Nations amongst the 104 member
states which have criminalised spousal rape. They include:
Country Year
1.Zimbabwe (2001)
2.Liberia (2006)
3.Rwanda (2009)
4.Ghana (2007)
5.Sierre Leone (2012)
6.South Africa
7.Namibia (2000)
8.Angola
9.Gambia
10.Republic of Congo.
11.Paupa New Guinea
12.Guinea Bissau
13.Lesotho.
THE ENGLISH CASE OF R V R AND ITS IMPLICATION ON THE
ENGLISH LEGAL SYSTEM.
The 1991 case of R V R (1991)1 A.C. 599 House of Lords, brought about the
much needed reform in the English Legal system. The facts of the case were
that the couple were married and subsequently were having issues, so the wife
moved out of the house and moved into her parents ‘house. She thereupon filed
for divorce proceedings. Her husband came to visit her at her parents place and

5. forced himself upon her. Her husband was charged with rape, it was his defence
that the offence of rape was unknown to the law because by virtue of
SECTION 1(1)of the Sexual Offences (Amendment) Act 1976, the offence
of rape was not known to law were the defendant was the husband of the victim.
His contention was rejected by the court and he was subsequently convicted for
rape, he appealed, the court in dismissing his appeal held thus:
‘’There wasno longera rule of law that a wifewasdeemed to have consented
irrevocablyto sexual intercourse withher husband, and thattherefore, a
husband
Could not be convicted of rape or attempted rapeof his wife, wereshe
has withdrawn
Her consent to sexual intercourse, that Section 1(1) of the Sexual
Offences (Amendment)
Act, did not givestatutory recognition to and perpetuatethe former
rule, and that
Accordingly, the defendant’sconviction wouldbeupheld.’’
The position before the decision in R V R(supra) is quite interesting, the courts
it would in deciding whether a spousewas guilty of the offence of rape took
into consideration the issue of divorce thus if a woman had filed for divorce
from her husband and the divorce proceedings had not become absolute the
courts held that the husband could not be guilty of rape because the wife had not
revoked her consent initially given when the marriage was contracted. The case
of R V Miller is one of such examples the wife had filed for divorce and
subsequently had been raped by her husband the court in acquitting the husband
held that although the woman had filed a petition for dissolution of marriage
the order Nisi had not becomeabsolute, the courts only considered a woman’s
consent as having been withheld by her intention to divorce her husband this
was based largely on Hart’s theory of mutual marital consent and that she could
not retract from it, so divorce in the opinion of the court meant a wife’s
retraction to the matrimonial contract and consent. The decision in R V R
though laudable was inept, controversial, and did not take into account

6. situations of rape in which the woman had no intention of filing for divorce or
had been granted a decree Nisi. There was need for proper, adequate reforms.
The Sexual Offences Act of 2003 which came into force in 2004, in England
cured the inherent defects under the old laws under the new laws the offence of
spousalrape has been merged into the general offence of rape with no
distinctions, thus a man can be charged for raping his wife under the new laws,
Section 1 of the Act is reproduced here:
‘’ A person A commitsan offence if
He intentionallypenetratesthe vagina,anus, or mouthof another person
B withhis penis
B does not consent to the penetration
A does not reasonablybelievethat B consents
A person guiltyof an offence under this section is liable, on conviction
On indictmentto imprisonmentfor life.’’
1.3 SPOUSALRAPE UNDER THE AMERICAN LEGAL SYSTEM
The American legal system as has been stated earlier had been influenced
by Hart’s theory and thus the marital exemption law had been entrenched into
the American legal system with states adopting it into various state laws. The
case of People V Liberta a case in which the Defendant was charged with
raping his wife he sought to defend himself under the marital exemption law he
was however convicted by the High Court of New York and he appealed to the
New York Court of Appeal, the Court in ruling upheld his conviction and
declared the marital exemption law unconstitutional.
The current position of the law in the State of New York is that a man can be
charged and if found guilty convicted of raping his wife. There is also no
distinction between spousalrape and general rape under the law consequently
spousalrape can be tried under the law, more importantly rape if tried under the
provisions of the law and the verdict is guilty the penalty fetches up to 25 years
in prison.

7. SPOUSAL RAPE UNDER THE NIGERIAN LEGAL SYSTEM
Spousalrape is not provided for under the Nigerian law, the relevant law
dealing with rape the Criminal CodeAct defines rape thus:
‘’ Any person who has unlawful carnalknowledgeof a woman or girl,
withouther consent, or withher consent, if the consent is obtained byforce or
by meansof threats or intimidationof any kind, or by fear of harm, or by
meansof false and fraudulentrepresentation as to the natureof the act, or, in
the case of a married woman,bypersonating her husband, isguiltyof an
offence whichis called rape.’’
The interpretation Schedule of the Criminal CodeAct Part 6 defines ‘’unlawful
carnal knowledge’’ as follows:
‘’meanscarnal connection whichtakes placeotherwise than between
husband and wife’’
The implication of this provision of the law is that a husband cannot be charged,
nor convicted for the offence of rape of his wife, becauseaccording to the law
rape cannot occurin marital relationships. It would appear that the marital
exemption law as applicable in the English legal system has been adopted into
the Nigerian legal system. What hope thus lies for women who are raped by
their spouses?They will have neither protection nor justice becausethe law
thinks it inconceivable that a husband will be guilty of the offence of rape of his
wife. It is hoped that someday and in the not too distant future that this
provision of the law will be reviewed and the law changed that victims of
spousalabuse in Nigeria will one day get justice. It cannot be right or justiciable
that a husband will have the right to rape his wife just becausethey are married,
women are humans too and the psychological effects as well as medical effects
of rape have a lifelong effect on a woman, rape is a bastardly, devious, act and
should be condemned by the society at large. A woman has a right to give or
withhold consent and such consent can never be taken as a licence to forcefully
rape a woman.
CONCLUSION

8. There have been improvements since the 60s and 70s, in the laws of various
countries as it relates to spousalrape, but good as this laws are they are not
without their difficulties spousalrape faces a lot of difficulties especially with
regards to proofof the offence, especially as the perpetrator is the husband of
the victim, an example is where A says her husband B raped her how is
penetration proved?And the evidence of semen does not prove sufficiently
prove rape, However it is not the only method of means of proving rape, other
means include injuries to the vaginal area, lacerations, bruising, torn muscles,
black eyes, knife wounds, burns, vaginal stretching, miscarriages, stillbirths,
bladder infections, infertility, and sexually transmitted infections, as well as
psychological trauma occasioned by years of abuse.