SUMMARY
In this discourse, rape is defined in the ordinary and legal parlance. The concept of consent, and how the absence of it renders an otherwise consensual sexual activity a crime is highlighted. The restrictive nature of the provisions of rape in the Criminal and Penal code is emphasized. This work discusses the history of marital rape exemption, also, the types and theories of marital rape. Extensively highlighted is the jurisprudence of marital rape, as well as, the arguments for and against upholding the marital rape exemption. This work further looks at the legal position of marital rape in Nigeria, how it encourages the crime of rape against married women and also the legal position of marital rape in other jurisdictions.
It is already established that marital rape is a form of violence and has no place in a civilized society. It is therefore the recommendation of this writer that the act of marital rape be criminalized. The Criminal code, the Penal code and all other laws dealing with rape and sexual offences should be amended to include marital rape.
Firstly, the definition of rape should be reviewed and expanded in order to make it more inclusive and encompassing. The definition of rape in Nigeria’s Criminal and Penal code should emulate the definition provided in the VAPP Act of 2015 where rape is a crime capable of being committed against and by both men and women. The fact that harm has been done should be the determining factor that constitutes the act of rape and not the gender of the victim. The Criminal and Penal Codes provisions on what establishes rape should be expanded to include oral and anal penetration and also the possibility of penetration with foreign objects. The definition of consent should be provided for in the Criminal and Penal code. As stated earlier, the VAPP Act of 2015 is a welcomed development as it is well detailed and comprehensive. However, there is the argument that some prosecutors or some judicial officers may be reluctant to entertain a case of marital rape without specific legislation. It may be interpreted that the reason for the absence of a specific legislation means that the legislators did not intend for it to be an offence. As much as it is important and recommended that the VAPP Act be ratified by all states of the federation, there is the need for explicit legislation criminalizing marital rape in Nigeria as stated in chapter three of this work.
