African Journal of Criminal Law and Jurisprudence (AFJCLJ) 8 (2023)

NEED FOR THE CRIMINALIZATION OF SPOUSAL RAPE: THE LEGAL LEEWAY*

Abstract
Marital rape is a global phenomenon. About 400,000 women are raped by their husbands each year. The evolution
of women’s status is forcing the legal system to rethink many of its policies and understand that no justification
exists to allow a man to use force to invade his wife’s bodily privacy. There are many instances where women
have accused their husbands of having sexual intercourse with them without their consent, and consent is the
main ingredient that determines if the act of rape have taken place and this amounts to violation of women’s
human right, sexual and reproductive rights The concept of spousal rape is alien to many cultures, including those
in Nigeria and some other African nations. It is generally regarded that such situations should be handled
privately rather than by the state. However, in some civilized nations like United Kingdom, this viewpoint is no
longer tenable. Owing to the fact that spousal rape is not recognized by Nigerian law, it is not surprising that
there are no known cases of it in the country today but there is now glimpse of hope with Section five of Violence
against Persona (Prohibition) Act. The aim of the study is to critically examine the need for the criminalization
of spousal rape and the legal leeway. The research methodology was doctrinal approach, using expository and
analytical research design. The main sources of data collection were various legal literatures, both from the
physical library and the e-library. It was therefore observed among others that the relevant legislation on the
crime of rape does not criminalise marital or spousal rape in Nigeria legal system and that the customary and
religious idiosyncrasies of the country make it easy for the married woman to be regarded as the lawful property
of her husband. Sequel to these, the researcher made some recommendations that the Criminal Code and the Penal
Code must be amended to properly reflect the trend in the modern meaning of rape which criminalises marital
rape and abolishes the exemption.

Keywords: Consent, Marriage, Marital rape, Spousal rape, Rape

1 Introduction
In many cultures, the concept of spousal conjugal rights has been regarded as a part of their cultural traditions.
This concept can be seen in the Common Law in the UK and North America, where the concept of spousal rape
was regarded as impossible.1 This was most effectively demonstrated by Sir Mathew Hale in his 1736 book
Historia Placitorum Coronae or History of the Pleas of the Crown, where he stated that such a rape could not be
recognized because the wife ‘had handed up herself in this way unto her husband, which she cannot withdraw.’2
Although Hale's claim in History of the Pleas of the Crown was not backed by any legal authority, it was thought
to be a logical extension of the laws regarding marriage and rape as they were perceived at the time. 3 In 1803's
East Treatise of the Pleas of the Crown and 1822's Archbold's Pleading and Evidence in Criminal Cases, the
principle was reiterated. Additionally, a lot of people believe that raping your spouse is impossible and have said,
‘But if you can't rape your wife, who can you rape?’4

From a social and cultural standpoint, the rigid duties that were allocated to the husband and wife have largely
shaped our contemporary laws, traditions, and religious viewpoints towards the institution of marriage. For
instance, practically every major tradition's marriage rites include elements that emphasize the idea that a woman
is a man's property. The practice of paying dowry, which is more frequently seen as a kind of remuneration for
the acquisition of the bride than as a sign of appreciation, serves as a case in point and refers to the woman as the
husband's property.5 There is also the religious aspect of a woman being one with his husband after marriage6,
hence it becomes impossible for the man to rape his wife whose being is regarded as being subsumed into that of

*By Chinwe Patricia ILOKA, BA(ED), LLB, BL, LLM, PhD, Lecturer, Faculty of Law, Chukwuemeka Odumegwu
Ojukwu University, Anambra State, Nigeria.Email: [email protected], [email protected]. Telephone: 08035696281;
*Chisom Maria-Gorretti AGHADINUNO, LLM, BL, Ministry of Justice Abuja Nigeria. Email:
[email protected]. Telephone: +2349034771772; and
*Onyinye Blessing ERIOBU, LLM Candidate, Faculty of Law, Chukwuemeka Odumegwu Ojukwu University, Anambra
State, Nigeria. Email: [email protected]. Telephone: +2347039326620.
1 Arinze-Umobi, C & Dinwoke, C. N., ‘A Case for the Criminalization of Spousal Rape in Nigeria’. Law and Social Justice

Review (LASJURE) 2 (1) 2021 P. 155

2 Sir Mathew Hale, Treatise Historia Placitorum Coronae or History of the Pleas of the Crown (1736) with notes Sollom

Emlyn, R Nutt and R Gossling

3 Arinze-Umobi & Dinwoke n- 1
4 MDA Freeman, ‘But If You Cant’t Rape Your Wife, Who[m] can You Rape?: The Marital Rape Exemption Re-examined’

Family Law Quarterly, Vol. 15 (1981), No. 1, 1 – 29. CA Umobi, Domestic Violence Against Women in Nigeria: A Legal
Anatomy, (Onitsha: Folmelch Printing & Pub. Co. Ltd 2008), 114
5 Mahoney P, Williams LM ‘Sexual Assault in Marriage: Prevalence, Consequences, and Treatment of Wife Rape,’ Family

Research Laboratory, University of New Hampshire.

6 Holy Bible, Genesis 2: 24 New King James Version (NKJV)

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ILOKA, AGHADINUNO & ERIOBU: Need for the Criminalization of Spousal Rape: The Legal Leeway
the man and her existence becomes that of the man hence as it would be viewed as him raping himself which is
impossible. This is argued to be the unity of persons’ theory. 7 The impasse over the subject of spousal rape in
numerous nations around the world is a result of such strongly ingrained cultural and traditional perception of the
man and woman in a marriage.

The issue of spousal rape first gained interest in the courts in 1888 more especially in the case of R v. Clarence
where the English Court considered why marital rape should be an exemption 8. Clarence was decided on a
different issue, and there was no definitive consensus among the nine Judges about the application of the spousal
rape rule.9 However, it wasn't until 1991 that the British courts realized that this anachronistic patriarchal attitude
had no place in contemporary jurisprudence.10 Particularly in October, 1991, in the case of R v. R11, the court was
challenged as to the criminal liability of a husband for having raped his wife. The court declared in a noteworthy
ruling that ‘that in modern times the supposed marital exception in rape forms no part of the law of England.’12
Therefore, this marked the emergence of a revolution in institution of marriage. However, due to the widely
accepted belief that a woman consented to all future sexual contact with her husband through the contract of
marriage, courts historically did not apply the rape statutes to acts of forced sex between couples. Rape was
traditionally only an offense that could occur outside of marriage. The concept of spousal rape is alien to many
cultures, including those in Nigeria and some other African nations, and it is generally regarded that such situations
should be handled privately rather than by the state. However, in the country where it originated, the United
Kingdom, this viewpoint is no longer tenable. Owing to the fact that spousal rape is not recognized by Nigerian
law, it is not surprising that there are no known cases of it in the country today.

This paper therefore seeks to expose the legal intricacies of rape in the marital sphere and the need to create a
legal criminal remedy for victims of marital rape.

2. Definition of Rape
Any unlawful, non-consensual carnal knowledge of a girl or woman by a male constitutes rape, which is the most
serious type of sexual assault. Rape is punishable with life imprisonment which depending on the circumstances
or region goes alongside whipping13. According to Black's Law Dictionary, rape is a crime in which a male has
sexual intercourse with a female by force and against her will and without her consent. This definition seems to
be in contrast with the common law definition of rape, which states that it is when a man has sexual intercourse
with a woman who is not his wife with force against her will and under threat 14. Rape has also been defined as an
unlawful sexual encounter with a person that doesn't entail mutual consent and involves the use of force, threat,
or another undesirable method15. Rape is codified in both the Criminal Code by virtue of Section 357 applicable
to the Southern States in Nigeria and also the Penal Code by virtue of Section 282 applicable to the Northern
States. Both codes demonstrate that rape is legally understood to be an act which can only be committed against
a female. In the case of Jegede V State16 the Supreme Court of Nigeria per Belgore JSC defined rape as follows:
The offence of rape is the 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 Thus rape is only committed
in circumstances set out above with clear evidence of penetration and who was responsible for it.

Thus, rape according to Nigerian law until 2015 limited the commission of the crime to a male against a female.
It must also be pointed out that the offence of rape would not be established until penetration is proved as

7 Emeka O. C. & Emejuru C. T., ‘An Appraisal of the Jurisprudence of Spousal Rape in Nigeria’ Donnish Journal of Law and
Conflict Resolution Vol 1(1) pp. 001-009 April, 2015
8 R v Clarence (1889) 22 QB 133
9 Arinze-Umobi & Dinwoke n- 1
10 Nyabicha E. N., ‘Exploring The Boundaries Of Conjugal Rights: Marital Rape As A Criminal Offence In Kenya’ (LL.B

Research Project of Strathmore University Law School, 2017) p. 19

11 R v R (1992) 1 A.C. 599, 614, House of Lords.
12 ibid
13 Olopade, O., ‟The Law Of Rape In Nigeria- A Revisit‟ in Ogungbe M.O.(Ed) Nigerian Law: Contemporary Issues Okada,

College of Law Igbinedion University 2003 p227 . 1978 and Section 283 of the Penal Code. See Republic v. Nwachukwu
(1964) 2 ALL NLR 104, Saraki v. R (1964) NMLR 28. The State v. Ojo (1980)2 NCR 391.
14 Mahoney P, Williams LM n- 5
15 Garcia-Moreno, C., Guedes, A and Knerr, W., ‘Understanding and Addressing Violence against Women’

<https://apps.who.int/iris/bitstream/handle/10665/77433/WHO_RHR_12.35_eng.pdf;jsessionid=AE4397A66312F4630DF6
E093EBF0B2BC?sequence=1> (accessed on 9th July, 2022).
16 Jegede v State (2001) LPELR-1603(SC)

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 African Journal of Criminal Law and Jurisprudence (AFJCLJ) 8 (2023)
intercourse cannot be said to have taken place without penetration of the vagina. In the case of Ahmed vs. Nigerian
Army17, the Supreme Court defined intercourse as physical sexual contact especially involving the penetration of
the vagina by the penis. It has been stated that rape is complete the moment the penis touches the folds of skin
over the vagina.18 In the case of Natsaha v The State19 the Supreme Court stated what must be proved for an
accused person to be convicted for rape as follows:
1. That the accused had sexual consent with the prosecutrix;
2. That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud,
force, threat, intimidation, deceit, or impersonation;
3. That the prosecutrix was not the wife of the accused;
4. That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her
consent, or that the accused acted recklessly, not caring whether the prosecutrix consented or not;
5. That there was penetration.

It has also been held that the slightest penetration is sufficient to prove the offence of rape. This was the position
of the court in R v Kufi20 where it was held that there rape cannot be proved without penetration. It was also
invariably held in Iko v State21 that the most essential ingredient of rape is penetration without which conviction
cannot be granted. It must be noted that the offence of rape was limited by the various codes and laws that
criminalized sexual offences to a crime capable of being committed against the female by the male and never
envisaged the possibility of a man being raped. Also, the various laws did not consider the unlawful penetration
of a woman’s anus or mouth without her consent as rape. 22 Arguments have been made that sexual activity
involving penetration of a woman or girl's anus or mouth with the penis could be just as traumatic as the forced
penetration of the vagina and should be treated as acts that meet the criteria for being called rape. 23

3. Rape under the Violence against Persons (Prohibition) Act, 2015

The Violence against Persons (Prohibition) Act, 2015 (hereinafter referred to as VAPP Act) redefined the extent
of the definition of rape as it expanded the circumstances under which the offence of rape can be said to have been
committed. The VAPP Act makes it clear that both men and women can be raped and can also commit the crime
themselves. The Act recognizes that a person may also be raped through the anus, vaginally, or through the mouth.
It also takes into account the possibility that someone could be raped using an object. Section 1(1) VAPP Act
provides that a person commits the offence of rape upon the following being done:
a) he or she penetrates the vagina, anus or mouth of another person with any other part of his or her body
or with anything else;
b) the other person does not consent to the penetration; or
c) 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 and fraudulent representation as to the nature of the act or the use of any substance or
addictive capable of taking away the will of such person or in the case of a married person by
impersonating his or her spouse.
The VAPP Act also provides to the extent that gang rape is regarded as criminal offences. The VAPP Act
prescribes the punishment of life imprisonment upon conviction for rape.24

4. Spousal Rape: Concept and Underlying Bases

Understanding Spousal Rape

Marital (or spousal) rape, according to Black's Law Dictionary, is when a husband engages in sexual activity with
his wife forcibly or without her consent. At common law, marital rape was not considered a crime, but under
current laws, the marital exemption is no longer valid, and in most countries, a husband can be charged with raping
his wife.25 Since the second half of the 20th century, the concerns of sexual and domestic violence in marriage
and the family, and more specifically, the issue of violence against women, have drawn increasing attention on a
global scale.26 Sexual intercourse with one's spouse without the consent of the spouse constitutes marital or

17 Ahmed v Nigerian Army (2016) 17 NWLR (Pt. 1540) 34

18 Samaha, J, Criminal Law, West Publishing Company 1996, 358.
19 Natsaha v. State (2017) LPELR-42359(SC) (Pp. 29-30 paras. G)
20 (1960) WNLR I
21 (2001) 14 NWLR (PT 732) 221
22 Arinze-Umobi & Dinwoke n- 1 p. 157
23 Ashiru, M.O.A and Orifowomo O.A, ‘Law of Rape in Nigeria and England: Need to Re-Invent in the Twenty-First Century’

Journal of Law, Policy and Globalization (2015), 38: 28-38.

24 ibid
25 Garner B. A (ed)., Black’s Law Dictionary, 10th Edition, p. 1450
26 Maxwell, J. ‘Redefining the Offence of Rape in Nigeria’

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spousal rape. The crucial component, which need not include violence, is the absence of consent. Marital rape is
regarded as a type of sexual abuse and domestic violence. 27

It has been explained that spousal rape is one of the most heinous violations of a woman’s bodily integrity. It is
portrayed as any unwanted sexual act committed by one spouse without the consent or express permission of the
other.28 This could be forced sexual acts, and may be induced by threat or intimidation. They could also include
anal or oral sex, as well as any other sexual activity that is degrading, unwanted, and painful. This also includes
sexual exploitation involving sexual contact, such as when a husband coerces a wife to engage in sexual acts with
someone else29. This working definition of marital rape includes incidents that might happen during a separation
or after divorce in addition to those that might happen to couples who are legally married and cohabiting. 30 This
position has been given judicial backing in the US Courts particularly in the New York Supreme Court in the case
of People v Liberta31 wherein the court held that the marital or spousal rape exemption is an unconstitutional
denial of the equal rights of protection of married women. 32

It is startling, however, that many people still have difficulty understanding the term, which is described as a
‘contradiction in terms.’33 It has been argued that the bone of contention in this issue has been the inability to
properly distinguish conjugal rights from marital rape. 34 Conjugal rights have been defined as the sexual rights
or privileges implied by and involved in the marriage relationship: the right of sexual intercourse between
spouses. 35 Denial of conjugal rights as defined by virtue of marriage laws in many jurisdictions is a ground
for divorce. This presents a significant challenge in terms of reaffirming your right as a spouse in the face of
non-consensual sex. Irrespective of the indistinct line between the two notions, different scholars regard the
marital rape exemption to conjugal rights, or what was originally referred to as conjugal debt in the medieval
era. 36 It must be pointed out that this notion of conjugal rights and other theories which will be briefly
examined hereunder are the salient reasons while marital rape exemption has held sway for long.

Implied Consent Theory

This theory propounded by Sir Matthew Hale is believed to be the genesis of marital rape exemption 37. He
states thus: ’Husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual
matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot
retract.’ The driving force of this theory is owing to the fact that sexual intercourse is an integral part of the
marriage institution, it is therefore implied that consent is given at all times and hence the husband do not need to
seek and obtain consent at all times for sexual activity in the marriage. As such, if the husband applies force to
engage in sexual intercourse with the wife, it is seen as the husband exercising his right in the marriage as
presumed from the onset.38 Opponents of this theory argue that it is invalid because a marriage contract is only a
contract in the strict sense, as opposed to a typical contract. This is due to the fact that the parties enter into the
‘contract’ without the benefit of traditional contract characteristics. Marriage contract theory differs from contract
law not only in its formation, but also in how it is enforced. In general, under contract law, private parties are not
permitted to use self-help to remedy a breach of a term in the contract. To reclaim their rights, they must instead
seek redress in a court of law. Similarly, if a woman violates the marital contract by refusing to consent to sexual
intercourse, a husband should not resort to rape as a means of enforcing the contract. 39 As a result, it is impossible
to defend the marital rape exemption because it distorts the fundamental principles of contract law, married status,
and rape itself.40 In addition, when considering the aspect of implied consent in the marriage institution, the law
prohibits anyone from giving their consent to serious bodily harm caused by another, regardless of how well-
known they are to the victim. As a result, a woman may consent to have sex with her husband when it is desired

27 ibid
28 Kolade-Faseyi, I., ‘Spousal Rape In A Globalized World’. NAUJILJ 9 (1) 2018 p. 108
29 Mahoney P, Williams LM n- 5
30 ibid
31 People vs. Liberta 62 N.Y.2d 651; 1984 N.Y
32 Pracher M, ‘The Marital Rape Exemption: A Violation of a Woman's Right of Privacy,’ 11 (3) Golden Gate University Law

Review Women's Law Forum, 1981.

33 Kolade-Faseyi, I n- 28
34 Nyabicha E. N n- 10 p. 19
35 Merriam-Webster Dictionary < https://www.merriam-webster.com/dictionary/conjugal%20rights> accessed 8th July, 2022
36 Nyabicha E. N n- 10 p. 19
37 Ibid p. 20
38 ibid
39 Pracher M n- 32
40 ibid

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 African Journal of Criminal Law and Jurisprudence (AFJCLJ) 8 (2023)
by both parties, but assuming the victim's consent goes beyond the bounds of the law and is contrary to its
fundamental nature.41

Unity of Persons Theory

This theory is propounded by Sir William Blackstone when he stated thus: ‘By marriage, the husband and wife
are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage,
or at least incorporate into her husband’42 The above implies that after a marriage, a couple becomes one, with
the male representing the one. As a result of the woman's identity being completely enmeshed with his, the man
is unable to rape himself. In the same way, historically, women were denied any type of civic identity because
they were considered to be their husband's chattels or property. 43 This view that women are not more than chattels
or properties of their husband has been rebuked by the courts over the years. Particularly in the case of Trammel
v United States44 the court stated unequivocally that ‘nowhere in modern society…is a woman regarded as chattel
or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human
being’.45 This theory as constituted since its inception still has modern attributes as it backed up from a religious
viewpoint.46

Marital Privacy and Reconciliation Theory

One of the foremost contemporary defenses for marital rape exemptions is marital privacy. Marital privacy
advocates argue that because the right to privacy within a marriage is so vital, the public and consequently the
legal system should not be allowed to define or judge the activities within marriages. 47 This approach tries to give
the couple power over the marriage, maintaining the union's sanctity in the process. 48 However, there are several
objections against this theory. One of them is that the marital rape exemption divests the woman of autonomy
over her body and life. 49 It therefore means that when the state clearly denies a married woman from seeking
remedies for physical harm done to her, the state is effectively depriving her of the right50 to choose what happens
to her physical, emotional, and psychological integrity. It is argued that partners are best able to figure out a
solution to their problems when they are able to keep marital issues private and out of the public eye. As a result,
the spirit of reconciliation is encouraged. According to reconciliation theorists, this resolution process, as opposed
to one that allows access to the criminal justice system for any type of marital dispute, helps promote greater
respect and understanding between the parties and facilitates their eventual reconciliation. 51 The fundamental idea
of the theory is that once the victim of marital rape files charges against her spouse, external factors will eventually
cause disharmony within the marital relationship, which will end up reducing the chances of reconciliation. 52 The
reconciliation and marital harmony theory has been rejected by most courts and critics on the ground that there is
no longer anything to reconcile so long as the marriage has condescended to the extent of forcible rape occurring.
Additionally, several courts and pundits have highlighted that the rape itself, rather than the rape charge, is what
destroys the relationship and chance for reconciliation. 53

The New Normal

These theories, along with a number of other arguments for spousal rape exemption, would be criticized on the
grounds that they minimize the gravity and sensitive nature of rape. When the act is viewed from the perspective
of its inhumane and exploitative nature, the current noninterventionist position of the legislation of rape in favor
of husband unquestionably ought to give way to protect and favor the female population, married women
included.54 In the case of R v. R55, the court made a significant shift in the common law rule on marriage immunity

41 Nyabicha E. N n- 10 p. 20
42William Blackstone. Commentaries on the Laws ofEngland. Vol, I (1765), pages 442 445.
http://www.kentlaw.edu/faculty/fbatlan/classes/BatlanGender&LawS2007/CourseDocs/coursedoc07/Blackstone.pdf
accessed 8th July, 2022
43 Nyabicha E. N n- 10 p. 21
44 Trammel v United States 445 U.S. 40 (1980)
45 Supra
46 Nyabicha E. N n- 10 p. 21
47 Ibid p. 22
48 ibid
49 Jackson L, ‘Marital Rape: A Higher Standard Is in Order’ 1 William & Mary Journal of Women and the Law, 1994
50 Nyabicha E. N n- 10 p. 22
51 Pracher M n- 32
52 Nyabicha E. N. n- 10 p. 23
53 Jackson L n- 48
54 Priyanka, R., ‘Marital Rape and the Indian Legal Scenario.’ Indian Law Journal <
http://www.indianlawjournal.com/volume2/issue2/articlebypriyanka.html> accessed on 8th, July, 2022
55 (1991) 3 WLR 767

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in rape by stating that the purported marital exemption in rape does not currently form a part of English law. In
the word of Lord Lane CJ, ‘The husband’s immunity ……no longer exists. We take the view that the time has
now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of
his relationship with his victim’.56 The implication from the aforementioned is that a wife does not need to submit
to her husband's unreasonable sexual demands or to obey him in all circumstances 57. It is preposterous to state
that the woman irrevocably submits herself to sexual activity in all situations and at all times by virtue of the
marriage. The poser thereof is if a wife is a slave. Not even slaves are placed in such degrading positions. Should
a raped woman be prevented from making a complaint just because she is married? Should she remain silent since
the alleged perpetrator is her intimate partner? It is pertinent to state that the laws are intended to meet the evolving
demands of society and to protect people regardless of age, marital status, or sexual identity. 58

5. Evidentiary Concerns and the Fear of False Allegations

Evidentiary issues are not a new problem, particularly when it comes to the rape problem. However, because of
the very structure of the institution of marriage, this issue is now one of significant concern when addressing
issues of marital rape. Owing to this difficulty, this idea is thought to be the most typical justification for the
marital rape exemption59. Another obstacle is the worry that a vengeful wife may certainly falsely accuse her
husband of marital rape. Rape, according to Sir Matthew Hale, is a charge that is easy made, hard to establish,
and harder to be refuted by the party accused. 60 This ‘fear based’ explanation has three points made against it.
First, there are other offenses that are equally hard to prove yet still have not been decriminalized. Instead, our
society depends on a criminal justice system that is inherently advanced to prevent the frivolous or incorrect
conviction of innocent people.61 Closely following is the legal opinion that convictions are not the only
justification for passing legislation. Additionally, laws do not only serve to condemn offenders but also as
educational and deterrent instruments, proclaiming to society what is morally correct and bad, what behavior is
accepted in society and what is not. 62

6. Spousal Rape in Nigeria

The Nigerian Criminal Legislation on Rape and its Applicability to Spousal Rape
It is pertinent to state that the Nigerian customary criminal laws on rape seems to be an offshoot of Sir Matthew
Hale’s proposition that a man cannot rape his wife hence, both the Criminal Code and the Penal Code do not
recognize marital rape as an offence. Clearly, the customary and religious idiosyncrasies of the country make it
easy for the laws to fit in as it regards to marital rape. In most Nigerian cultures, a married woman is regarded as
the lawful property of her husband63, and as with all other abstract properties, the husband is given the authority
to handle her as he sees fit. This means that a husband cannot be questioned about the methods or means by which
he chooses to have sexual intercourse with his wife, and the wife, as his property, cannot refuse to agree to the
act. If the wife refuses to consent to the act and the husband proceeds to have his way forcefully, her lack of
consent will have no effect. The Islamic law which is one of the majorly practiced religions in Nigeria forbids a
woman from declining her husband sexual intercourse except she is ill.64 It should be emphasized that in Islam,
rape is classified as zina, which is defined as sexual activity between a man and a woman occurring without the
existence of a marriage between them.65 This means that it can be inferred that a husband and wife's sexual
relationship is legal and cannot, in any way, amount to rape.66 According to Christian religion, which is widely
practiced in Nigeria, the wife's body belongs to her spouses; thus, a wife is discouraged from denying her husband
the pleasure of her body. The teaching of Saint Paul in the Bible is informative on this subject. 67 While the various
religious and cultural perspectives on the marital intercourse do not prescribe a penalty for violating any of the
stipulations, it still act as catalyst in shaping the mind of individuals and public opinion on the issue 68. It will
therefore come as no surprise that both the Criminal Code and Penal Code Acts make provisions to the extent that

56 Supra
57 Kolade-Faseyi, I n- 28 p. 109-110
58 Ibid p. 110
59 Pracher M n- 32
60 Ibid
61 Ibid
62 Ibid
63 Chukkol, K.S. The Law of Crime in Nigeria (Zaria, A.B.U Press, 1988), p.193
64 Khan, M.M. (Translation): Sahih-A1-Bukhari, Vol.7 p.93
65 Naseef, O. Encyclopedia of Seerah Vol.1 (London: The Muslim Schools Trust, 1982) p.772 cited in Y.Y Bambale, Crimes

and Punishment under Islamic Law, (2nd ed). (Lagos: Malthouse Press, (2003), p.28.
66 Emeka O. C. & Emejuru C. T n- 7 p. 007
67 Naseef, O n- 65
68 Emeka O. C. & Emejuru C. T n- 7 p. 007

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 African Journal of Criminal Law and Jurisprudence (AFJCLJ) 8 (2023)
any sexual activity between married persons cannot be considered as rape as all such activities in the marriage are
considered as consensual.69 It will therefore be necessary to examine the Criminal Code and the Penal Code to
ascertain the extent to which they regulate the offence of rape in Nigeria and the obvious deficit in decriminalizing
spousal rape in both codes.

Criminal Code70
Section 357 Criminal Code provides as follows:
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 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.71

Reasonably, the Criminal Code did not expressly mention marital rape exemption; however, Section 6 of the
Criminal Code Act offers a view into why the Act has been interpreted to provide an exemption for spousal rape.
It reads thus: ’unlawful carnal knowledge’ means carnal connection which takes place otherwise than between
husband and wife.72 It is argued that the community reading of both Section 6 and 357 of the Criminal Code is
significant in ascertaining whether a marital exemption is present in the offence of rape or not. Section 357 of the
Criminal Code having described rape as an unlawful carnal knowledge in the conditions specified therein and
Section 6 defines unlawful carnal knowledge as sexual intercourse that occurs other than between husband and
wife, it therefore means that a carnal connection between a husband and wife is lawful and not prohibited therefore
it cannot be considered rape.73 This indicates that the Criminal Code has given the offense of rape a marital
exemption.

Penal Code Act74

Section 282 of the Penal Code provides as follows:
(1) A man is said to commit rape who, save in the case referred in (2), has sexual intercourse with a female in any
of the following circumstances:-
(a) against her will; (b) without her consent; (c) with her consent when her consent has been obtained by putting
her in fear of death or of hurt; (d) with her consent when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she believes herself to be lawfully married;
(e) with or without her consent if she is under fourteen years of age or of unsound mind.
(2) Sexual intercourse by a man with his own wife is not rape if she has attained puberty.75
The significant point in the provisions of the Penal Code Act is Section 282(2) which acts as an exception to
Section 282(1). The conclusion is that anyone who falls within the scope of subsection (2) of Section 282 will not
be held criminally accountable for any act committed in violation of subsection (1) (a)-(e) of the same section.76
It follows that the marital exception for rape under the Penal Code has been introduced by the clause in subsection
(2). This implies that a man cannot be charged with raping his wife under the Penal Code. 77 It must however be
pointed out that Section 282(2) of the Penal Code carries a caveat which states that ‘Sexual intercourse by a man
with his own wife is not rape if she has attained puberty’.
It has been submitted that it could imply that the exemption will only be available to men who engage in
nonconsensual or forcible sexual activity with their wife who are of legal age. 78 What it then means is that a man
would be guilty of rape under the Penal Code if he has forcible or nonconsensual carnal relationship with his wife
who has not attained puberty. It is important to point out that at the time of this research, there was no available
judicial authority to give a backing to this logical conclusion.

Other Significant Legislations on the Offense of Rape and Significance on the Issue of Spousal Rape in
Nigeria
It is important to point out that apart from the Criminal Code and the Penal Code, there are other legislations
currently in force in Nigeria that regulates the offence of rape albeit that their applicability do not yet enjoy a

69 Kolade-Faseyi, I n- 28 p. 109-110
70 Cap C38 Laws of the Federation of Nigeria 2004
71 ibid
72 ibid
73 Emeka O. C. & Emejuru C. T n- 7 p. 008
74 Cap P3 Laws of the Federation of Nigeria 2004
75 Ibid
76 Emeka O. C. & Emejuru C. T n- 7 p. 008
77 Ibid
78 Ibid p. 107

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ILOKA, AGHADINUNO & ERIOBU: Need for the Criminalization of Spousal Rape: The Legal Leeway
range as wide as the Criminal and Penal Codes. The Armed Forces Act 79 and the Violence against Persons
(Prohibition) Act, 2015 are therefore significant to this work.

Armed Forces Act

Section 77 of the Armed Forces Act provides as follows:
A person subject to service law under this Act who has unlawful carnal knowledge of a woman or girl without her
consent or with her consent if obtained-
(a) by force or by means of threat or intimidation of any kind; or
(b) by fear of harm; or
(c) by means of fake and fraudulent representation as to the nature of the act; or
(d) in the case of a married woman, by personating her husband, is guilty of an offence under this section and
liable, on conviction by a court-martial, to imprisonment for a term not exceeding fourteen years or any less
punishment provided by this Act. 80
The Armed Forces Act, like the provisions of the Criminal Code, exclusively punishes someone who has ‘unlawful
carnal knowledge’ of a woman or girl. The phrase unlawful implies that there is some kind of carnal knowledge
that is lawful. However, the Armed Forces Act does not contain any provisions that are equivalent to Section 6 of
the Criminal Code, which defined the word ‘unlawful carnal knowledge,’ despite the similarity in the provisions
of both Acts as it pertains to rape. It has however recommended that the definition of ‘unlawful carnal knowledge’
included in the Criminal Code be adopted in interpreting Section 77 of the Armed Forces Act. 81

Violence against Persons (Prohibition) Act 2015

As earlier stated, the VAPP Act broadened and developed the meaning of the offence of rape. Section 1 of the
VAPP Act provides as follows:
(1) A person commits the offence of rape if-
(a) 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;
(b) the other person does not consent to the penetration; or
(c) 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 and 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.
(2) A person convicted of an offence under subsection (1) of this section is liable to imprisonment for life except
-
(a) where the offender is less than 14 years of age, the offender is liable to a maximum of 14 years imprisonment;
(b) in all other cases, to a minimum of 12 years imprisonment without an option of fine; or
(c) in the case of rape by a group of persons, the offenders are liable jointly 10 a minimum of 20 years
imprisonment without an option of fine.
(3) The Court shall also award appropriate compensation to the victim as it may deem fit in the circumstance.
(4) A register for convicted sexual offenders shall be maintained and accessible to the public.82

The provisions of the VAPP Act, supersede those of the Criminal and Penal Codes in terms of rape and other
related sexual offences. By its provisions, the definition of rape is expanded to mean that both men and woman
are capable of committing rape and are also capable of being raped. However, the VAPP Act like the other laws
does not specifically tackle the concerns of marital or spousal rape. But it must be noted that the VAPP Act is
significant in addressing prevalent issues as it affects the welfare of women as it prohibits spousal battery and
other domestic based violence which are predominantly perpetrated against women.

Again, the fact that VAPP Act in defining rape moved away from the conventional provisions of the Criminal and
Penal Codes and also did not identify carnal knowledge as being an inherent aspect of the life of a married couple
magnifies the fact that the VAPP Act is open to the interpretation of criminalizing spousal rape. Significantly, the
VAPP Act by virtue of Section 5 proscribes the compulsion of another to engage in any act whether sexual or
otherwise which said conduct will traumatize or jeopardize the victim’s psychological wellbeing. 83 The provisions
of the VAPP Act which makes it so that any offence defined by the Act could be committed by both genders and
both genders could be victim of the crime urges the mind in assuming that spousal rape can be convicted under

79 Cap. A20 LFN 2004

80 The Armed Forces Act Cap. A20 LFN 2004
81 Emeka O. C. & Emejuru C. T n- 7 p. 008
82 The Violence Against Persons (Prohibition) Act 2015
83 Section 5 Violence Against Persons (Prohibition) Act, 2015

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 African Journal of Criminal Law and Jurisprudence (AFJCLJ) 8 (2023)
the VAPP Act. Unfortunately, the VAPP Act is only applicable to the Federal Capital Territory, Abuja in
Nigeria.84

7. The Case for Criminalization of Spousal Rape in Nigeria: Common Ground, the International Circus,
and the Way Forward

The Common Ground

By virtue of the two major criminal legislations in Nigeria, the Criminal Code and Penal Code Acts, a man
commits rape when he has unlawful sexual intercourse with a woman other than his wife who did not give her
consent to the act. Although rape is defined differently in the two statutes, the conclusion is the same. The two
statutes do not define the crime of rape; rather, they list the elements of the crime that must be proven beyond a
reasonable doubt in order to get a conviction. Therefore, rape can only happen to women. In several other
jurisdictions, where men can also be raped, this is not the case. 85 The common ground is that the relevant
legislation on the crime of rape do not criminalise marital or spousal rape.

International Circus
Due to its endemic and pervasive nature, spousal rape is a problem that is becoming more and more important in
modern human civilization. The rate at which this crime is being reported, recorded, and made public does not
match the unprecedented escalation of this crime. 86 The socioeconomic effects of spousal rape have been
recognized by several nations, and as a result, they have enacted legislations which criminalises the act. The
majority of the world's nations have moved completely away from the common law position that the victim must
be a woman and now refer to rape as a crime in terms that are gender neutral. 87 The exclusion for marital rape,
which was based on Sir Hale's controversial statement, has been abolished, and the term ‘rape’ has been substituted
by terms like ‘non-consensual sexual intercourse,’ ‘sexual assault,’ and ‘sexual violence,’ among others.88 Among
these nations are the United States of America and the United Kingdom, where spousal rape laws were passed in
1993 and 1991, respectively, and offenders are tried and given jail sentences. 89 Closely in Africa, one of the
foremost countries to criminalise spousal rape is South Africa. By enacting the Prevention of Family Violence
Act, 1993, The Criminal Law (Sentencing) Amendment Act, 2007 and The Criminal Law (Sexual Offences and
Related Matters) Amendment Act of 2007, South Africa has now expanded it laws on rape to apply to all forms
of sexual offences even when committed in the home. The Prevention of Family Violence Act clearly provides:
‘Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted
of the rape of his wife.’90 It must be stated that other countries such as India are yet to have a definite legal system
that criminalises spousal rape. The Declaration on the Elimination of Violence against Women (DEVAW), among
other international human rights documents, recognized spousal rape as a violation of women's human rights.
Spousal rape was specifically identified by DEVAW as a type of violence against women. 91 Additionally, the
Beijing Declaration and Platform for Action defines domestic violence against women as physical, sexual, and
psychological abuse, including marital rape92. These international views on spousal rape are further fueled by the
fact that it is unacceptable for the husband to force his wife into having sex when she is obviously not emotionally
or physically stable.

8. The way Forward in Criminalising Spousal Rape in Nigeria

It has been observed that the first challenge in criminalizing spousal rape in Nigeria is by first modifying the
relevant legislations on rape particularly the Criminal Code and Penal Code Acts. 93 The various sections which
create marital rape exemption such as Section 6 of the Criminal Code Act and Section 258(2) must first and
foremost be expunged by amendment. Thus spousal rape ought to be criminalized by the two relevant statutes in
order to protect the physical and psychological health of married women. Very importantly, the VAPP Act must
be domesticated by all 36 states of the Federal Republic of Nigeria to reflect the uniformity of the innovations of

84 Section 47 Violence Against Persons (Prohibition) Act, 2015

85 Arinze-Umobi, C & Dinwoke, C. N n- 1 p. 158
86 Ibid p. 157
87 Kolade-Faseyi, I n- 28 p. 112
88 ibid
89 Arinze-Umobi, C & Dinwoke, C. N n- 1 p. 158
90 Section 5 Prevention of Family Violence Act, 1993
91‘Declaration on the Elimination of Violence against Women’ (A/RES/48/104 85th plenary meeting 20 December 1993 article

2(a)
92 Beijing Declaration and Platform for Action’ (Adopted at the 16th plenary meeting, on 15 September 1995) section D

(113(a)
93 Arinze-Umobi, C & Dinwoke, C. N n- 1 p. 159

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ILOKA, AGHADINUNO & ERIOBU: Need for the Criminalization of Spousal Rape: The Legal Leeway
the VAPP Act in the entire Nigerian society. As earlier stated Section 5(1) of the VAPP Act is specific as to the
compulsion of a person to engage in sexual acts. It provides thus:
A person who compels another, by force or threat to engage in any conduct or act, sexual or
otherwise, to the detriment of the victim's physical or psychological well-being commits an
offence and is liable on conviction to a term of imprisonment not exceeding 2 years or to a fine
not exceeding N500,000.00 or both.94

It is therefore submitted that this Section gives an opening to the criminalization of marital rape as the provision
is devoid of any such exemptions but includes any person in whatever capacity.

9. Conclusion
It is quite obvious that the United Kingdom where Nigeria borrowed most of its laws including criminal laws have
since criminalised spousal rape. A host of other jurisdictions including the United States of America and South
Africa has also made laws which criminalise the menace of spousal rape. What must not be neglected is the effects
of the crime on the psychological wellbeing of the victim. Little wonder, the various international human rights
bodies advocates strongly for its criminalization. Nigeria as a growing country must not be left out. As earlier
pointed out the VAPP Act seemed to have open the doors to the possibility of criminalizing spousal rape in
Nigeria. What must be done is for the domestication of the VAPP Act to be carried out by all the states in the
country. Again, it is pertinent to urge that the Criminal Code Act and the penal Code Act must be amended to
properly reflect the trend in the modern meaning of rape which criminalises marital rape and abolishes the
exemption.

94 Section 5 Violence Against Persons (Prohibition) Act, 2015

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