The child or young person is never held responsible for his wrongs. This concept of family or group responsibility is posited on the notion that until a person is an adult which is the age of responsibility, the family to which he belongs is legally responsible for his actions. In light of this the criminal law is drafted such that a 12 year old being is incapable of rape. The law also makes this an irrebuttable presumption. For the reasons outlined in this work; the writers opine this to be an unrealistic approach in the way that, the physical development of a male child does not, in reality preempt him from having carnal knowledge. The writers also aver that the cognitive factor of a minor’s capability to understand his offence should be given paramount consideration. It is on this basis; it is submitted in this work that, to reduce the occurrence of the offence of rape, a strict deterrent is to be placed on the crime for all offenders and so while a child may not be convicted for the offence of rape, such a child may be convicted of offences which have a lesser punishment than the offence of rape and therefore law makers should consider appropriate amendment for the provision of law.
Keywords: Rape, Criminal Justice System, Modification, Minimum age law, Legislations.
The pervasive nature of sexual assault in modern society has posed threats to societies and continues to wreck incessant havoc in variant ways. Rape is one of the precarious forms of sexual assault which societies have continued to combat and discussions about it tend to be very sensitive and spur a lot of emotional tides. According to South Eastern Centre Against Sexual Assault (CASA) and Family Violence, sexual assault is considered to be any behavior of a sexual nature which is either unwanted, occurring without the consent of victim or makes the victim feel uncomfortable and afraid. Rape is considered to be an act of sexual intercourse with an individual without his or her consent. Data gathered by bodies, institutions and even individual around the world reports a high rate of rape crimes in several countries all over the world and this is also with the inclusion of many developed states. One of these statistics focusing on the United States reportedly states that in the States, according to a National Violence Against Women Survey, 1 in 6 U.S women and 1 in 33 U.S men has experienced an attempted rape or completed rape in their lifetime. Alongside the U.S is Sweden where it is reported that one out of every four women comes out to be a victim of rape. The statistics of Nigeria however remain the most horrific with a great number of rape cases occurring to the child population of the nation. Statistics show that Africa has the most prevalent rate of sexual abuse around 34.4 percent and also as at 2004, 60 percent of children involving in child trafficking from Africa to Europe were Nigerians. Statistics direct pointers to the fact that rape is a sexual assault that is carried out mostly by men but with continual progression of society especially and also the role played by early sexual orientation of children, this vice has become one perpetuated by both young and old. The tenability of the position of incapacity of rape by a child below the age of 12 which is the tenet upon which Nigerian law on rape is built therefore becomes questionable. The letter of law which exempts a child from the offence of rape and here a child being a male below the age of 12 becomes a questionable one as a result of the advancement in society and at this point needs to be redefined and possibly reconsidered.
Rape as a Form of Sexual Assault
It was stated earlier in this paper that rape is a form of sexual assault. Sexual assault can be defined as an illegal sexual advance upon a person without consent or is inflicted upon a person who is incapable of giving consent (as because of age or physical or mental incapacity) or who places the assailant (such as a doctor) in a place of trust or authority. It was defined by the World Health Organization as “Any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic or otherwise directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.” Coercion in this sense encompasses varying degree of force, psychological intimidation, blackmail or threats (of physical harm or of not obtaining a job/grade etc.). In essence, sexual assault occurs when there are unwanted or unconsented sexual relations and/or intercourse.
Sexual assault is a common phenomenon occurring worldwide and terrorizing homes, relationships and our society at large. The crime has seeped its way so deeply into our society that a survey retrieved from the Centers for Disease Control and Prevention, National Center for Injury Prevention and Control showed that 1 in 5 women and 1 in 71 men will be sexually assaulted at some point in their lives. A 2015 survey carried out by the United Nations Children’s Fund (UNICEF) in Nigeria reported that 1 in 4 girls and 1 in 10 boys in the country had experienced one form of sexual assault before the age of 18. According to another survey by Positive Action for Treatment Access, over 31.4% of girls in Nigeria said that their first sexual encounter had been by one form of sexual assault. The available statistics on sexual assault are horrifying and it is rather unfortunate that this crime is largely unreported. For example, a Latin American Study estimated that only around 5% of adult victims of sexual assault reported the crime to the police.
Sexual assault is a highly despicable act having adverse effects on its victim, with these effects ranging from physical to psychological. Amongst the various forms of sexual assault is the act of rape. The term is often used interchangeably with sexual assault because of its close relations and similarities. Rape, generally, may be defined as an act usually involving sexual intercourse or other forms of sexual penetration carried out against a person without the person’s consent. The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent (statutory rape). The offence of rape is a grave one which causes negative effects on its victims which include Post-Traumatic Stress Disorder (PTSD), depression, suicide in severe circumstances, death and so on.
Rape through the Lens of Various Legislations
Rape constitutes a violation of human rights and fundamental freedom. It violates the rights of people to be free from torture, to mental and physical integrity, to liberty and security of person, and prevents enjoyment of rights such as the right to health, employment and freedom of expression – and, in some cases, it denies them the right to life. It is also a gruesome form of sexual assault that is committed against women at the international and national level. There is no universally accepted definition of rape as definitions vary between different legal systems. However, in the discussion of rape the principles developed by the Elements of Crime of the Rome Statue for the International Court, and international and regional human rights tribunals is considered to be very reputable and also to be the most advanced definition proffered with regards to the subject.
The Rome Statute defines the crime against humanity of rape in Article 7(1) (g) of the Elements of Crimes:
- “The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
- The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.”
Despite the exorbitant occurrence of rape that is witnessed within the environs of the country, the glaring fact still remains that with the exception to the Federal Capital Territory, as a nation there is still no state law which addresses the issue of rape which is the most rampant violence occurring against women. The various systems which coexist in Nigeria such as the Criminal Code, the Penal Code amongst others, have provisions in them which apply in various regions and which constitutes the legal framework for rape in Nigeria.
The Criminal Code
Section 357 of the Criminal Code Act (Nigerian Laws Cap 38), applicable in the south of Nigeria, defines rape 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.”
It has been stated that “Carnal knowledge” under the provision of the criminal code implies penetration. This could be interpreted as including penetration by a foreign object. Under the succeeding section, Section 358, the punishment for rape is stated and according to the provision of this section, rape is punishable by life imprisonment, with the possible addition of caning.
Existing side by side the criminal code is the penal code which is the law applicable in the northern parts of Nigeria.
The Penal Code
The Penal Code (Nigerian Laws Cap 89), applicable in the north of Nigeria, criminalizes both rape and “defilement” (rape of a girl under the age of 13 years). Section 282(1) of the Penal Code defines rape as:
A man is said to commit rape who, save in the case referred to in subsection (2), has sexual intercourse with a woman 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 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 is or believes herself to be lawfully married; (e) with or without her consent, when she is under fourteen years of age or of unsound mind.
The provision of the penal code is considered to be restrictive as it considers rape done only by insertion or penetration of the penis into the vagina, while this is invariably the most common form of rape occurring, rape may also take the form of insertion of foreign object into the vagina and also occur when there is oral or anal penetration by the penis.
Nature of the Minimum Age Law
An adult in the eyes of law is one who has reached the age of maturity- this is considered to vary across various states. This age indicates the individual is legally responsible for his or her actions and behavior. The age of majority is the threshold of adulthood in law. It is the chronological moment when a child legally ceases to be considered a minor. After attaining the age of majority, a person assumes control over their persons, actions and decisions. S/he terminates the legal control and legal responsibilities of parents or guardian. The age of maturity is a legally fixed age which may differ depending on the jurisdiction, it may also not correspond with the actual mental and physiological maturity of the child. Hence it is pertinent to note that the age of maturity prescribed is not one dependent on the physical and biological components of humans.
Establishing a minimum age of juvenile justice jurisdiction aligns with international human rights standards. Article 40 of the United Nations Convention on the Rights of the Child (1989) declared that all nations set a minimum age of criminal responsibility (MACR) below which no child would be subject to formal prosecution. This thrusts a mandatory obligation not to expose without care, recklessly or thoughtlessly children who being at stage of infancy may not possess requisite knowledge or understanding of all their actions. The backdrop of this kind of prescriptive law is seen in countries such as United States, where the period of 1980’s and 1990’s was considered to be the prison boom and by 2000s the youth incarceration rate in USA was roughly higher than in England and 3000 times higher in Japan. Following this doctrine in several jurisdictions, civil and common law there has been a definition of the minimum age below which no child can be exposed to criminal prosecution. Countries like Finland have a defined minimum age of 15 which is 8 years above the age of reason (15years). Nigeria a member state of the UN is not left behind in this regard, The Federal Child Right Act defines a child to be one who is under the age of 18. Also, in the same light The Children and Young Persons Law defines a child as under 14 and a young person as aged 14-16. In southern states the Criminal Code sets the minimum age of criminal responsibility at seven and this is not applicable in other regions where the Criminal Code is not in force. With respect to the offence of rape unlike any other offence within the Criminal Code, a minimum age is defined for the commission of the offence, which is also majorly the concern of this work. The provision with respect to this is found under section 30 of the Criminal Code and the discussion of the provision of this section and its implication follows in the subsequent part of this work.
The Irrebutable Presumption under Section 30 of the Criminal Code
Section 30 of Criminal Code states:
A person under the age of seven years is not criminally responsible for any act or omission.
A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission, he had capacity to know that he ought not to do the act or make the omission.
A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.
This principle of law has nothing to do with their ability or inability to penetrate. This is within the sphere of legal parlance referred to as a “presumption of law” and is of the nature of an “irrebuttable presumption”. An irrebuttable presumption is an inference which the court shall deduce from given sets of facts and no contrary evidence shall be given to dislodge it. It is a proof of law in the sense that the law requires a conclusive assumption to be made. The implication of this is that it is not open to any counsel before any court of record to contest the validity of such position of law or try to persuade the court otherwise. The offence of rape like any other offence is concurrently considered to be made up of the elements of “mens rea” and “actus reus” but regardless where such elements are present in an offence of rape committed by a male child of below 12 years in the eyes of the law, there is no commission and the offender will not be prosecuted. This position of law does not make it possible for such a child having committed such an offence to be exposed to an alternative corrective disciplinary approach less punitive than the court system as is found in other systems. The writers contend this position of law in light of the grave statistics that exist with respect to the frequency of the occurrence of such an offence as rape. In countries such as Britain, there has been no national sample study of either the incidence or prevalence of rape but wider survey of victimization has provided some insight. The 2008/9 British Crime Survey found that 19.5 percent of the women and 2.8 percent of the men they sampled had suffered a sexual assault (or attempted sexual assault) at least once in their lifetime. In Ask Any Woman, 17 per cent of the respondents to a questionnaire said they had been raped and a further 20 per cent said they had been victims of attempted rape. Notably in Nigeria, a non-governmental organization, Women At Risk International Foundation (WARIF), has condemned the high incidence of sexual assault and rape amongst young girls and women across Nigeria, disclosing that the country records 10,000 of the menace daily. In addition to these horrifying statistics sex therapies also underline the often-made assertion: ‘once a sexual offender, always a sex offender’ and stressed the offenders’ risk of re-offending. All of these brings to the limelight the unbridled occurrence of the rape crime in modern society and the prevalence witnessed in such a crime as this is one that requires more prompt action on the part of the law. Several reasons exist with respect to why the writers contend the provision of this section and consider it to be unsuitable in modern times and also consider it to be lending no credible support to combatting the menace of rape in the society.
The Underlining Pitfalls of the Provisions of Section 30 under the Criminal Code
The sustainability of such a provision of law as seen above is one that raises a lot of queries in light of sexual advancement and exposure attainable in recent times and as such the validity of the position of section 30 as an irrebuttable presumption of law remains questionable and prone to criticism for various reasons.
Firstly, it is noted by MSD Manual Consumer Version that Sexual maturation or puberty begins at different ages depending on genetic and environmental factors. Sexual maturity begins earlier today than a century ago, probably because of improvements in nutrition, general health, and living conditions. On this basis it is possible to state that where sexual maturation occurs at an early stage of a person as a result of hormonal or other triggers as the case maybe, a child 12 years of age maybe capable of carnal knowledge of a female. Hence this position of law that a child 12 years of age and below is incapable of having carnal knowledge should not hold trite in such a situation where there has been early sexual maturation in a child, and such a child who in the eyes of the law is considered incapable of carnal knowledge as a result of peculiar growth based on his own biological clock will possess such abilities. More so research reveals that the average age of first sexual experience is 14 for girls and 13 for boys, an age not so far off from the 12-year limitation prescribed under the criminal code. Smith and Hogan have regarded the age limit of ten under English Jurisdiction as comparatively low age for the beginning of criminal responsibility but Professor Chukkol succinctly stated in his book that this can hardly be a valid assertion as for it does seem that children of the present generation do attain sufficient mental maturity at a comparative earlier age. The provision of law also tends to place an indiscriminate level of focus on physical maturity as this in itself is not required for an erection in a male child, an erection being an important constituent for the offence of rape. In an age of television and cinema where most films show concern cases of crime, children and young person are most likely to get some dirty ideas at an early age and as a result of exposure to certain adult content may come to possess a certain level of mental maturity.
Secondly, the implication of this provision tends to be greatly unfavorable to the victim of rape who will mostly be on the losing side as they have to face the physiological and psychological effects of rape which range from the: painful intercourse with their significant other, painful urination, uterine fibroids, pregnancy, STD’s and also Physiological effects such as Depression, Borderline, Post-Traumatic Disorder, Guilt, Distrust of others, Feelings of personal powerlessness. More so a concern is raised regarding the persons who may be victims of rape by assailants who may be 12 years of age or below and the people who may be recipient of such attacks are young girls who are the most vulnerable and susceptible to such attacks as seen in the case of R. V. G. In the case of R. V. G the defendant, a boy of 15 pleaded guilty to the rape of a child under 13 and it was stated that there was a need for criminal law to provide effective protection for those who cannot protect themselves from the sexual attention of the guilty, who could rape a child under 13 (she was 12). The girl initially alleged that she had not consented to sexual intercourse and it was on the basis that the most serious charges was proceeded with. It was pointed out here also that there are long term and serious harm both physical and psychological which may result from premature sexual activity and the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating.
According to the report published by The Office of Juvenile Justice and Delinquency Prevention (OJJDP), “Although those who commit sex offenses against minors are often described as “pedophiles” or “predators” and thought of as adults, it is important to understand that a substantial portion of these offenses are committed by other minors who do not fit the image of such terms. In this report it was stated that according to the police, juveniles constitute about one-third (35.6 percent) known to have committed sex offences against minors. Juveniles who commit sex offenses against other children are more likely than adult sex offenders to offend in groups and at schools and to have more male victims and younger victims. A small number out of juvenile offenders 1 out of 8 are younger than the age of 12. According to another report it was stated that the younger the child victim, the more likely it is that the perpetrator is a juvenile. Juveniles are the offenders in 43% of assaults on children under age six. Of these offenders, 14% are under age 12. Statistics report a lot of cases of rape offence committed by minors but this is not publicized as the case of rape committed against child victims by pedophiles or rape committed against adult victims. As stated by the OJJDP Research (supra) on juvenile sex offenders goes back more than half a century; however, little information about these young offenders and their offenses exists. The unavailability of well-grounded report and documentation of such juvenile offences can be linked to the lack of consideration given to the possibility of the occurrence of this kind of event. The implication of the provision of Section 30 thus has several far-reaching consequences than it seems likely. The provision not only has adverse effect for the victim who lives subsequently in perpetual fear knowing that her assailant roams free without any retributive or rehabilitative means taken to deter further acts like those committed against her. It also places a great probability of the sexual recidivism which could go all the way into adulthood more horrific is the tendency of these minors to become adult pedophiles. The pragmatic approach required for the proper management of such occurrence would be to ensure appropriate consideration be made of the possibility and capability of persons below the age of 12 of committing the offence of unlawful carnal knowledge contrary to the position found in the extant Criminal Code applicable to the South and at the occurrence of such ensuring appropriate measures are taken. As against institutional methods of treatment there exists non-institutional method of treatment of juvenile offenders in the nature of probation, corporal punishment and fines; and the making of fit-persons Orders.
The writers do not presuppose the full extent of criminal justice to be applied to children as it would be the case for adults, the writers still propose that retributive means alongside rehabilitative means be put in place. However, all of this can only be made possible with the amendment and modification of the irrebuttable stance assumed by law as pronounced by section 30 of the criminal code. Also while a possible conviction for the offence of rape may not be sustainable in the event of juvenile rape offences legal writers have proposed that it is possible to obtained convictions for other sexual offence such as indecent assault as provided under Section 360 of the Criminal Code which carries a lesser sentence, the writers consider that emphasis not be placed so much on harsh and strict punishment and uphold the use of institutional and non-institutional means of correction. It is therefore pertinent that the law not tread on the path of finality with respect to its provisions for but at all times it gives room for the inclusion of proof as this is necessitated for both victims of assault and also for the benefit of the collective existence in society.
About the Author(s)
Chukwuma Chukwunazaoku is a Law Student, Afe Babalola University, Ado-Ekiti, Ekiti State; Email: [email protected]
Odozi Michael is a Law Student, Afe Babalola University, Ado-Ekiti, Ekiti State; Email: [email protected]
 A. G. Karibi-Whyte, Criminal Policy: Traditional Policy and Modern Trends, (Nigerian Law Publications Ltd, 1998)
 Section 360 Criminal Code Act
 Geeta Pandey “Top 10 Countries with Highest Rape Crime” (Linked in, February 21 2018) <https://www.linkedin.com/pulse/top-10-countries-highest-rape-crime-geeta-pandey> accessed 5 July 2019.
 See page 1 of this article.
 Merriam-Webster Dictionary 11th edition.
 World Health Organization, ‘Violence against women – Intimate partner and sexual violence against women’ Geneva World Health Organization, 2011.
 Black, M. C., Basile, K. C., Breiding, M. J., Smith, S.G., Walters, M. L., Merrick, M. T., Stevens, M. R. (2011). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 summary report. Retrieved from the Centers for Disease Control and Prevention, National Center for Injury Prevention and Control.
 “Release of the findings of the Nigeria Violence Against Children Survey”, UNICEF Nigeria, 10 September 2015 <http://www.unicef.org/nigeria/media_9588.html>. accessed 7 October 2019
 Nigeria’s Troubling Epidemics of rape < https://www.vanguardngr.com/2013/05/nigerias-troubling-epidemic-of-rapes/> accessed 2 October 2019
 Contreras J et al. Sexual violence in Latin America and the Caribbean: a desk review. Pretoria, Sexual Violence Research Initiative, 2010.
 It may be pertinent to note that despite the similarities, the acts differ in different jurisdictions.
 The definition of rape has been exhausted earlier in this work.
 Rome Statute of the International Criminal Court, adopted on 17 July 1998.
 Violence Against Persons (Prohibition) Act 2015
 Age of Maturity: Definition and Significance, < https://www.stimmel-law.com/en/articles/age-majority-definition-and-significance> accessed 15 January 2020
 Elizabeth S. Barnett, Laura.S.Abrams, Cheryl Maxson, Lauren Gasen, Patricia Soung, Paul Caroll, Eraka Barth, Setting a Minimum age for Juvenile Justice Jurisdiction in California, (2016) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5841225/> accessed 16 January 2020
 Kharisu Sufiyan Chukkol, The Law of Crimes in Nigeria, (Abu Press Limited 1989)
 Section 145(3) Nigeria Evidence Act
 Imam Ibraihim, Nigeria Law of Evidence (Malthouse Press)
 Clarkson and Keating, Criminal Law (Sweet &Maxwell, 2010)
 Hazel Croall, Crime and Society in Britain (Pearson Education Limited, 2011)
 K. Wellings, Sexual Behaviour in Britain: The National Survey of Attitudes and Lifestyles (1994), p.40
 K. wellings, Sexual Behaviour in Britain: The National Survey of Attitudes and Lifestyles (1994), p.40
 Smith & Hogan, Criminal Law, (London 3rd edition)
 Kharisu Sufiyan Chukkol (Ibid)
 Commenting on this Professor Glanville Williamsin had stated the following:
“The other person who cannot be convicted of rape is a boy under 14, the reason advanced being that he is irrebuttably presumed not to have reached the age of puberty. This fiction is doubly silly. First, puberty may be attained before 14, and secondly, puberty is not necessary for rape. Rape requires only penetration, not fertilisation, so that it is only an ability to have an erection, not an ability to emit semen that is physically necessary for the crime.” Glanville Williams, TEXTBOOK OF CRIMINAL LAW 638 (2nd ed. London: Steven & Sons, 1983).
 Samantha Gluck, Effects of Rape: Physiological and Physical Effects of Rape, <https://www.healthyplace.com/abuse/rape/effects-of-rape-psychological-and-physical-effects-of-rape> accessed 20 January 2020
  1 A.C 92 [HOUSE OF LORDS]
 U.S. Department of Justice; this is an Office of Justice program created to improve the justice’s system’s response to crimes committed against children.
 David Finkelhor, Richard Ormrod, and Mark Chaffin, Office of Justice Programs, <https://www.ncjrs.gov/pdffiles1/ojjdp/227763.pdf>, In recent years, there has been increased public interest in the incidence of sexual victimization of youth by other youth. This should not be surprising considering that youth constitute more than one in four sex offenders and that juveniles perpetrate more than one in three sex offenses against other youth. Research on juvenile sex offenders goes back more than half a century; however, little information about these young offenders and their offenses exists.
 Snyder, H. N. (2000). Sexual assault of young children as reported to law enforcement: Victim, incident, and offender characteristics. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Retrieved January 12, 2009 from http://www.ojp.usdoj.gov/bjs/pub/pdf/saycrle.pdf
 According to OJJPD Early thinking about juvenile sex offenders was based on what was known about adult child molesters, particularly adult pedophiles, given findings that a significant portion of them began their offending during adolescence.
 This involves institutions such as Remand Homes, Borstal Institutions and establishment of approved schools. Hon-Justice A.G Karibi-Whyte, Criminal Policy: Traditional and Modern Trends supra (pg95)
 Michael A. Ajachukwu, Hemen Philip Faga, Perpetration of the Offence of Rape by Minors in Nigeria: A Call for Legislative Re-statement of the Law , US-China Law Review, (13)(8).
Author: ABUAD Law Review
The ABUAD Law Review (ALR), is a Journal published by the Afe Babalola University Law Students’ Society. It aim is to contribute to law and policy reform, not just in Nigeria, but the world at large by fostering rapid dissemination of preliminary research results by students, legal practitioners, teaching and research scholars.