De-genderisation of the Offence of Rape under the Violence against Persons (Prohibition) Act 2015: An Assessment of the Practical Challenges and the Slippery-Slope Effects

Bolaji S Ramos. African Journal of International & Comparative Law. Volume 28, Issue 3. August 2020.

Dynamism is one of the certain features of law, and all around the world laws are being repealed, amended, re-enacted and reviewed regularly or on a ‘need’ to basis to meet the challenges or practical realities of the modern world. The provisions of the Nigerian Violence Against Persons (Prohibition) Act 2015 on the offence of rape has also toiled this path, by seeking to de-genderise the existing gender-specific nature of rape law in Nigeria. In achieving this objective through redefinition of what constitutes rape, the new definition comes with a lot of slippery-slope instances that may make enforcement of the provisions on rape in the VAPP Act practically challenging. The article highlights and analyses the practical challenges emanating from the redefinition of the offence of rape and advocates for a further redefinition that will do away with possible instances that may come under the present definition which the lawmakers may not have intended.

I. Introduction

What does it mean for the government to treat its citizens as equals? That is … the same question as the question of what it means for the government to treat all its citizens as free, or as independent, or with equal dignity … To accord with this demand, a government must be neutral on what might be called the question of the good life …

The need to run a society with gender equality consciousness has, for some years now, continued to form part of the discourse both at the national and international levels. At the national level, attention of the policy-makers and the legislature has continuously been drawn by stakeholders to salient provisions in the Constitution, African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and relevant international instruments where gender mainstreaming has been incorporated as an integral part of our jurisprudence.

In its simplest form, gender mainstreaming is the conscious effort by the government to consider how laws, policies and decisions made by the lawmakers and policy-makers will affect the peculiar interests of women and men. It is ‘a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated.’ The ultimate goal of gender mainstreaming is gender equality. In effect, a law is gender-mainstreamed if it takes both genders into consideration in its provisions and application. What, therefore, properly mainstreamed laws and policies are expected to achieve is equality between both genders in all spheres of their legal, social, political and economic relations.

In Nigeria presently, one of the notable laws that have attempted to place both men and women on the same pedestal of equality is the Violence Against Persons (Prohibition) Act 2015. Unlike other gender-mainstreamed laws that focus majorly on civil relations between the genders, a substantial part of the Violence Against Persons (Prohibition) Act (VAPP Act) focuses on criminalisation and punishment of certain acts meted out by one gender on the other in their relations or interactions.

Except for cursory reviews of the VAPP Act on the pages of newspapers and the Internet, it will appear that there is a dearth of comprehensive, analytical reviews and literature on some of the salient provisions of the Act. Historically, the law of rape in Nigeria under the Criminal Code, Penal Code, Criminal Procedure Code and the respective similar statutes in all of the 36 States in Nigeria is gender-specific. The offence of rape is genderised – that is, it can only be committed by a male person against a female person. In an attempt to mainstream and de-genderise the rape law as it applies to the Federal Capital Territory, Abuja, the offence of rape under the VAPP Act was given a new look.

One of the most salient, innovative and controversial provisions of the VAPP Act is contained in section 1. The section provides for the offence of rape, and in its four subsections, it entirely redefines the offence of rape in a way that it is not only novel to the Nigerian criminal jurisprudence, but is also capable of creating serious practical challenges to the law enforcement authorities. This singular redefinition of the offence of rape is also capable of bringing with it some slippery-slope effects. In spite of all these, there are still acts of rape not presently contemplated in the redefinition of rape under the VAPP Act. The jurisprudence of rape in jurisdictions such as South Africa has recognised what may be termed as third-party rape or causal rape.

II. A Cursory Overview of the VAPP ACT 2015

The Act, as captured in its long title, seeks to achieve three major things: (a) to eliminate all forms of violence in private and public life; (b) to prohibit all forms of violence against persons; and (c) to provide protection and effective remedies for victims and punishment of offenders. To achieve these three orders, the VAPP Act creates 26 different offences against the persons. The 26 offences are contained in the first 26 sections of the Act. The entirety of the 26 offences constitutes Part I of the Act. Upon conviction, the punishments for the offences range between life imprisonment and a variety of lesser terms of imprisonment, and monetary fines between ₦100,000 and ₦1,000,000.

Part II of the VAPP Act covers sections 27 to 38, and they border on the jurisdiction of the court – the application for protection orders, and the granting, variation, setting aside and discharge of protection orders, among other things. By virtue of section 27 of the Act, only the High Court of the Federal Capital Territory, Abuja has jurisdiction to hear and grant any application brought under the Act. One very grey area on the issue of the jurisdiction of the court under the VAPP Act is the perceived conflict between sections 27 and 46. While the former states unequivocally that the High Court of the FCT Abuja shall have jurisdiction in respect of all applications brought under the Act, the latter defines court to mean both the Magistrates’ Court and the High Court.

Apart from applications for protection orders which are expressly within the jurisdiction of the Abuja High Court to grant, the VAPP Act is absolutely silent on which court will have jurisdiction on criminal charges filed in respect of any of the 26 offences created under the Act. This obvious gap comes with a lot of concerns, knowing full well that bringing an application for a protection order and instituting criminal proceedings in respect of any of the offences created under the Act are entirely two different things. Where the Magistrates’ Court will come in the whole of this equation is a real issue begging for an answer.

Part III of the Act comprises sections 33 to 44, and the sections focus on service providers. Service providers are defined as registered voluntary associations whose objectives include protecting the rights and interests of victims of violence by any lawful means while Part IV recognises and mandates the National Agency for the Prohibition of Trafficking in Persons (NAPTIP) to administer the provisions of the VAPP Act in collaboration with relevant stakeholders. The last two parts are Part V which covers section 45 and Part VI which covers the last section– section 46. While the former provides for superiority of the VAPP Act over certain relevant extant laws, the latter is the definition section for certain words used in the Act. The Schedule to the VAPP Act has samples of six different forms for protection orders.

III. The Face of Rape Law in Nigeria Before the VAPP Act 2015

Until the enactment of the VAPP Act in 2015, the law on rape at the federal level was gender-specific and devoid of gender neutrality. The genderisation was inherent in all the provisions of the relevant laws on rape to warrant the conclusive position that rape in Nigeria can only be committed by a male person towards a female person. The present de-genderisation that was brought about by the VAPP Act in 2015 could be said to have been influenced by the desire of the federal lawmakers to incorporate gender mainstreaming into the jurisprudence of rape law in Nigeria. As earlier posited, the ultimate goal of gender mainstreaming is gender equality in spheres of gender relations, in law and in the applications of such law.

The face of rape law in Nigeria before the VAPP Act 2015 (at the federal level) can be gleaned from the relevant provisions in the Criminal Code and the Penal Code. The provisions of the Acts on rape are as set out below:

Criminal Code

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 the offence which is called rape.
Unlawful carnal knowledge means carnal connection which takes place otherwise than other than between husband and wife.

Penal Code Act

(1) A man is said to commit rape who, except in the case referred to in subsection (2) of this section, 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 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 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.
(2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.

The provisions of section 357 of the Criminal Code and section 282 of the Penal Code have received appreciable judicial interpretation in a plethora of cases. In Gambo Idi v. Kano State, a recent case decided by the Supreme Court in June 2017, section 282 of the Penal Code was interpreted and the conviction of the appellant for the offence of rape was affirmed. The Supreme Court drew out the following ingredients of rape from the provisions:

(a) The accused had sexual intercourse with the prosecutrix.
(b) The act of sexual intercourse was done without her consent or the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.
(c) The prosecutrix was not the wife of the accused.
(d) The accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or the accused acted recklessly not caring whether the prosecutrix consented or not.
(e) There was penetration.

From the provisions of section 357 of the Criminal Code, section 282 of the Penal Code and the interpretation of the sections in all the judicial decisions, it is settled that the offence of rape in Nigeria is a gender-specific offence – only a male person can commit it, and it must have been committed against a female person – a woman or a girl whose consent was not given or whose consent was given out of free will or lack of legal capacity. Three major criticisms against the provisions of the two codes are as follows:

(a) Rape cannot be committed by a man against his wife. Therefore the concept of marital is not recognized under both codes.
(b) Rape under the two codes is limited to penile penetration. The two codes do not take cognizance of oral sex and anal sex which could be done, not only through penile penetration, but also through object penetration or penetration through other any part of the body.
(c) Rape under the two codes is gender-specific. Only men can commit rape. Women cannot commit rape.

Both the Criminal Code and the Penal Code are originally pre-Independence legislative enactments. Since their first passage into law more than sixty years, the two codes have received very little or no serious attention in terms of review. This fact has shown that the codes are lagging behind time. Criminal jurisprudence has taken and is still taking a new face in modern times both at the national and international levels. New acts, not known to the codes, are being recognised as offences. Certain acts already recognised as offences are being expanded, reviewed and revisited to bring them at par with modern realities. One will not be mistaken to say that it is in the light of all of these and the need to mainstream the offence of rape that the federal government conceived a redefinition of the offence of rape under the VAPP Act.

IV. The New Face of Rape Law Under the VAPP ACT 2015

The new regime of rape law in Nigeria today as it operates at the federal level is as contained in section 1 of the VAPP Act. The section provides thus:

(1) A person commits the offence of rape if:
(a) he or she intentionally penetrates the vagina, anusor 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 false or 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.

The expansive redefinition introduces new words and terms such as ‘she’, ‘vagina’, ‘anus’, ‘mouth’, ‘another person’, ‘any other part of his or her body’ and ‘anything else’. These new terms operate to, on the one hand, de-genderise the gender-specificity of the provisions of the Criminal Code and the Penal Code on the offence of rape and, on the other hand, to expand the existing definitions under the two codes. By virtue of the new definition, the jurisprudence of rape has now been stretched to accommodate and create three distinct categories of rape, namely (a) vaginal rape (involving penetration of the vagina); (b) anal rape (involving penetration of the anus); and (c) oral rape (involving penetration of the mouth).

Mention should also be made of the fact that traditionally, the penis is (was) the only legally recognised instrument of penetration under the Criminal Code and the Penal Code. This position can now be described as defunct. There are now, at least, three categories of instruments of penetration under section 1 of the VAPP Act, namely – (a) the penis, which is historically the universally recognised organ of penetration in the offence of rape across all jurisdictions; (b) any other parts of the body, which can be the finger(s), the tongue, the toe(s), the hand or the nose; and (c) anything else, which is listless, and will ordinarily include objects such as a pen, a pencil, a banana, an orange, a book, a cellphone and any other thing (apart from any part of the human body) that is capable of being used to penetrate or cause penetration.

The section has also created four relational categories of rape which could be termed as follows: (a) a male raping a female (masculine heterosexual rape) which is the oldest form; (b) a male raping a fellow male (masculine homosexual rape) which is newly introduced; (c) a female raping a male (feminine heterosexual rape).

The innovative characteristics of the redefinition of rape under section 1 of the VAPP Act and the resulting expansion of the jurisprudence of rape have, as earlier observed, far-reaching effects – some of which will create slippery-slope effects and instances that will be practically difficult for the prosecution or law enforcement agencies to prosecute, in the real sense of it, as rape. A thorough disambiguation of section 1 of the Act has shown that at least 34 different and distinct instances can amount to rape. The instances, under their respective categories, are listed below:

Masculine Heterosexual Rape (Male against Female)

A male person penetrates a female person’s vagina with his penis (vaginal rape/vaginal sex)
A male person penetrates a female person’s anus with his penis (anal rape/anal sex)
A male person penetrates a female person’s mouth with his penis (oral rape/oral sex)
A male person penetrates a female person’s vagina with any part of his body (e.g. fingers, tongue, hand, toes or leg)
A male person penetrates a female person’s anus with any part of his body (e.g. fingers, tongue, hand, toes or leg)
A male person penetrates a female person’s mouth with any part of his body (e.g. fingers, tongue, hand, toes or leg)
A male person penetrates a female person’s vagina with anything else (e.g. an object or any other thing other than any part of the man’s body)
A male person penetrates a female person’s anus with anything else (e.g. an object or any other thing other than any part of the man’s body)
A male person penetrates a female person’s mouth with anything else (e.g. an object or any other thing other than any part of the man’s body)

Masculine Homosexual Rape (Male against Male)

A male person penetrates another male person’s anus with his penis (anal rape/anal sex)
A male person penetrates another male person’s mouth with his penis (oral rape/oral sex)
A male person penetrates another male person’s anus with any part of his body (e.g. fingers, tongue, hand, toes or leg)
A male person penetrates another male person’s mouth with any part of his body (e.g. fingers, tongue, hand, toes or leg)
A male person penetrates another male person’s anus with anything else (e.g. an object or any other thing other than any part of the man’s body)
A male person penetrates another male person’s mouth with anything else (e.g. an object or any other thing other than any part of the man’s body)

Feminine Heterosexual Rape (Female against Male)

A female person penetrates her vagina with a male person’s penis (vaginal rape/vaginal sex)
A female person penetrates her anus with a male person’s penis (anal rape/anal sex)
A female person penetrates her mouth with a male person’s penis (oral rape/oral sex)
A female person penetrates her vagina with any part of a male person’s body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates her anus with any part of a male person’s body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates her mouth with any part of a male person’s body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates a male person’s anus with any part of her body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates a male person’s mouth with any part of her body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates a male person’s anus with anything else (e.g. an object or any other thing other than any part of the female’s body)
A female person penetrates a male person’s mouth with anything else (e.g. an object or any other thing other than any part of the female’s body)

Feminine Homosexual Rape (Female against Female)

A female person penetrates her vagina with any part of a female person’s body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates her anus with any part of a female person’s body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates her mouth with any part of a female person’s body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates a female person’s vagina with any part of her body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates a female person’s anus with any part of her body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates a female person’s mouth with any part of her body (e.g. fingers, tongue, hand, toes or leg)
A female person penetrates a female person’s vagina with anything else (e.g. an object or any other thing other than any part of the female’s body)
A female person penetrates a female person’s anus with anything else (e.g. an object or any other thing other than any part of the female’s body)
A female person penetrates a female person’s mouth with anything else (e.g. an object or any other thing other than any part of the female’s body)

All these represent the new face of the jurisprudence of rape in Nigeria at the federal level. Undoubtedly, it is completely different from the repealed provisions of the Criminal Code and the Penal Code on rape.

V. The Slippery-Slope Effects

A slippery slope has been defined as a course of action that seems to lead inevitably from one action or result to another with unintended consequences. In simple parlance, it is a concept that postulates that while attempting to make policies, laws or decisions or take administrative actions to address a certain (boiling) issue, the policy-makers have made provisions or done something that is capable of encompassing unintended or undesirable situations and instances. Sidgwick, who described a slippery slope as the ‘thin edge of the wedge’, captured a slippery slope situation as follows:

We must not do this or that … because if we did, we should be logically bound to do something else which is plainly absurd or wrong. If we once begin to take a certain course there is no knowing where we shall be able to stop within any show of consistency; there would be no reason for stopping anywhere in particular, and we should be led on, step by step into action or opinions that we all agree to call undesirable or untrue.

In an attempt to attain gender balancing or what this author has described as de-genderisation, the federal legislature redefined the offence of rape in section 1 of the VAPP Act. From the clinical disambiguation of the section as shown above, 34 instances of vaginal, anal and oral sex can lead to rape as highlighted above. A closer look at these instances shows that up to twenty-two of the instances would seem to be unintended or undesired. That is exactly where the slippery slope comes in. As Sidgwick said in 1910, if we begin a certain course of action there is no knowing where we shall be able to stop, and we should be led on step by step into action or opinions that we all agree to call undesirable or true.

A. The Slippery Slope in Masculine Heterosexual Rape

Masculine heterosexual rape (MHR) is one that involves a man raping a woman or a girl without her consent or with her consent which was given in a situation that law considers such consent to be void. MHR is complete upon slight penetration of the woman’s or girl’s vagina, anus or mouth.

Out of the nine instances of rape highlighted under the category of MHR, six of them are novel to the rape jurisprudence in the whole of Nigeria. All these six instances involve anal and oral sex, and defining them as rape is an innovative development. The last four instances as highlighted above seem to undoubtedly be the ones with slippery-slope effects under the MHR category. In other words, under 6 to 9 of the instances given above, it is now trite and conclusive that a man may be guilty of the offence of rape if he does any of the following without the consent of the woman:

(a) Merely putting his finger(s) inside the woman’s mouth
(b) Merely putting his hand inside the woman’s mouth
(c) Merely putting his toe(s) inside the woman’s mouth
(d) Merely dipping his tongue inside the woman’s mouth (even if he did not kiss her)
(e) Merely putting or dipping any part of his body inside the woman’s mouth
(f) Merely putting a pencil, biro, carrot or any other object inside the woman’s mouth
(g) Merely putting a pencil, biro, carrot or any other object inside the woman’s anus
(i) Merely putting a pencil, biro, carrot or any other object inside the woman’s vagina

Penetration has been defined as the entry of the penis or some other part of the body or a foreign object into the vagina or other bodily orifice. A bodily orifice is an opening in the body (vagina, mouth or anus) through which something may pass. Under Nigerian law, slight penetration of a bodily orifice is enough to amount to rape. Under the VAPP Act, therefore, the offence of rape is complete even if the only thing that enters the mouth of the woman is the tip of the man’s finger or tongue. The same is applicable to other penetrating body parts or objects.

B. The Slippery Slope in Masculine Homosexual Rape

Masculine homosexual rape (MHoR) is one that involves a man raping another man or a boy without his consent or with his consent, where such was given in a situation that law considers it to be void. MHoR is complete upon slight penetration of the man’s or boy’s anus or mouth. All the six instances of rape highlighted above under the category of MHoR are novel to the rape jurisprudence in the whole of Nigeria. Three of these instances (12 to 15) are wreathed with perceived slippery-slope effects. Under this new regime, a man may be guilty of the offence of rape if he does any of the following without the consent of another man:

(a) Merely putting his finger(s) inside the man’s mouth
(b) Merely putting his hand inside the man’s mouth
(c) Merely putting his toe(s) inside the man’s mouth;
(d) Merely dipping his tongue inside the man’s mouth (even if he did not kiss him)
(e) Merely putting or dipping any part of his body inside the man’s mouth
(f) Merely putting a pencil, biro, carrot or any other object inside the man’s mouth
(g) Merely putting a pencil, biro, carrot or any other object inside the man’s anus
(h) Merely putting a tongue inside the man’s anus
(i) Merely putting his hand inside the man’s anus
(j) Merely putting his finger inside the man’s anus
(k) Merely putting any part of his body inside the man’s anus

For this purpose of the VAPP Act, while the female person has three orifices, the male person has two orifices (anus and mouth). The offence of rape is complete even if the only thing that enters the mouth or anus of the man is the tip of the finger or tongue of another man, provided there is no consent and the entry was done intentionally. The same is applicable to other penetrating body parts or objects.

C. The Slippery Slope in Feminine Heterosexual Rape

Feminine heterosexual rape (FHR) is one that involves a woman raping a man or a boy without his consent or with his consent, where such consent was given in a situation that law considers it to be void. There are ten cognisable instances under the FHR category which are listed above from 16 to 25. From the ten instances, six of them, as listed in 19, 20, 21, 23, 24 and 25 above, may result in unintended outcomes. Under these instances, a woman may be guilty of raping a man in the following circumstances:

(a) Merely putting the man’s finger inside her vagina
(b) Merely putting the man’s finger inside her mouth
(c) Merely putting the man’s finger inside her anus
(d) Merely putting the man’s tongue inside her vagina
(e) Merely putting the man’s tongue inside her mouth (even when she didn’t kiss him)
(f) Merely putting the man’s tongue inside her anus
(g) Merely putting any other part of the man’s body inside her mouth, anus or vagina
(h) Merely putting her finger inside the man’s mouth or anus
(i) Merely putting her tongue inside the man’s mouth or anus
(j) Merely putting any other part of her body inside the man’s mouth or anus
(k) Merely putting any object (e.g. pencil, pen, carrot, etc.) inside the man’s mouth or anus

One thing to note is that words such as ‘put’, ‘dip’ and ‘insert’ connote penetration. Once the body part or an object which is under the control of the woman goes into any of the orifices recognised under the Act, then the offence of rape is complete. It is immaterial that the bodily orifice through which penetration occurred is that of the woman or the man.

D. The Slippery Slope in Feminine Homosexual Rape

Feminine Homosexual Rape (FHoR) is one that involves a woman raping another woman or a girl without her consent or with her consent, where such consent was given in a situation that law considers it to be void. FHoR is complete upon slight penetration of the woman’s or girl’s vagina, anus or mouth. There are nine instances of rape (26 to 34) highlighted above under the category of FHoR, all of which are novel to the rape jurisprudence in the whole of Nigeria, and they may come with undesirable and unintended effects. On the face of it, a woman may be guilty of the offence of rape if she does any of the following to another woman or a girl without the latter’s consent:

(a) Merely putting her tongue inside the vagina of the other woman
(b) Merely putting her finger inside the vagina of the other woman
(c) Merely putting her toe or hand inside the vagina of the other woman
(d) Merely putting her tongue inside the anus of the other woman
(e) Merely putting her finger inside the anus of the other woman
(f) Merely putting her toe or hand inside the anus of the other woman
(g) Merely putting her tongue inside the mouth of the other woman (even when there is no kiss)
(h) Merely putting her finger inside the mouth of the other woman
(i) Merely putting her toe or hand inside the mouth of the other woman
(j) Merely putting the finger, tongue or any part of the body of the other woman inside her vagina
(k) Merely putting the finger, tongue or any part of the body of the other woman inside her anus
(l) Merely putting the finger, tongue or any part of the body of the other woman inside her mouth
(m) Merely putting a pen, pencil, carrot or any other thing inside the vagina of the other woman
(n) Merely putting a pen, pencil, carrot or any other thing inside the anus of the other woman
(o) Merely putting a pen, pencil, carrot or any other thing inside the mouth of the other woman

Again, slight insertion of the body part or the object used is enough to complete the offence of rape of a woman by another woman. The offence of rape will be said to be complete even if the only thing that enters the vagina, mouth or anus of a woman is the tip of the finger or tongue of another woman, provided there is no consent and the entry was done intentionally. This applies mutatis mutandi to other penetrating body parts or objects. It is immaterial that the bodily orifice through which penetration occurred is that of the woman who was raped or the woman who raped.

VI. Practical Challenges of Enforcement of the Rape Provision

The essence and beauty of any law in any society is in its just and practical application. A law becomes dead when it becomes highly impracticable, unconceivable and factually impossible to enforce – due, may be, to its relative opposite values to the values of the society or because of its novelty which the law enforcement officers are yet to come to terms with.

The administration and enforcement of the VAPP Act are placed in the hands of NAPTIP, who must work with other relevant stakeholders. The relevant stakeholders for the enforcement of the VAPP Act are the police and the High Court of the Federal Capital Territory, Abuja (the Court). The police have the general powers to prevent, investigate, detect and prosecute crimes, while the Court is primarily saddled with the responsibility to adjudicate on matters brought before it, whether civil or criminal.

A. NAPTIP

NAPTIP was established under section 2 of the Trafficking in Persons (Prohibition, Enforcement and Administration) Act 2015. Its main function under its enabling Act is to adopt effective measures for the prevention and eradication of trafficking in persons and related offences. NAPTIP carries out its functions through its governing board. To be able to function effectively in its fight against trafficking in person, NAPTIP operates through its special departments. Of all the special departments, the Legal and Prosecution Department is the one responsible for the prosecution of offenders under the Act, supporting other departments with legal advice and performing such other legal duties as maybe referred to it by NAPTIP.

In 2015, a total number of 570 cases were reported to NAPTIP, out of which only 203 cases were successfully investigated. Out of these investigated 203 cases, only eight were on rape, and the Legal and Prosecution Department of NAPTIP was able to secure convictions only in respect of two of them. It is noteworthy, however, that these two cases were not even brought under the contentious definition of rape in section 1 of the VAPP Act. They were brought under the sexual abuse provision of the Trafficking in Persons (Prohibition) Enforcement and Administration Act.

In 2016, a total number of 721 cases were reported to NAPTIP, out of which only 389 cases were successfully investigated. None of these 721 reported cases and the investigated 389 cases was based on rape under the VAPP Act. By the third quarter of 2017, a total of 620 cases had been reported to NAPTIP. One hundred and ninety-two cases were sent to the Legal and Prosecution Department for legal advice and opinion, out of which 55 cases were charged to court and conviction was secured in respect of only one case for unlawful carnal knowledge. Within the last quarter of 2017, another conviction involving a man that had carnal knowledge of his daughter was secured by the Legal and Prosecution Department on 12 December 2017 under the VAPP Act.

Since the passage of the VAPP Act in May 2015 to January 2018, NAPTIP has recorded no more than three cases directly brought under the VAPP Act. It is noteworthy that two of these cases, even though they related to rape as contemplated by section 1 of the VAPP Act, were never brought pursuant to section 1 of the Act. However, an aspect of the novel provision (anal rape) of section 1 of the Act was put to test in the Shehu Abubakar case and the court convicted the defendant for anal rape and sentenced him to 12 years’ imprisonment. Notwithstanding this, anal rape, when it involves insertion of the penis into the anus, is a close neighbour of the popularly criminalised vaginal rape, and willingness to investigate and prosecute it may not raise issues.

It is doubtful if, in actual fact and in a practical sense, the Legal and Prosecution Department of NAPTIP would ever be willing to prosecute a person for rape in most of the cases involving the slippery slopes in masculine heterosexual rape, masculine homosexual rape, feminine heterosexual rape and feminine homosexual rape. As earlier shown from NAPTIP’s data analysis reports covering January 2015 to September 2017, NAPTIP received a total of 1,911 cases but was only able to fully investigate 395.

The 1,911 cases received by NAPTIP involved cases that NAPTIP, under its enabling Act, was primarily established to prosecute. The cases include the importation of persons for prostitution, the exportation of persons for prostitution, the procurement of persons for sexual exploitation, the recruitment of persons under 18 years for prostitution, the recruitment of persons for pornography or brothels, foreign travel which promotes prostitution, the buying or selling of human beings for any purpose, the employment of children as domestic workers and inflicting grievous harm, to mention a few.

With the rate of human trafficking in Nigeria and the world at large, together with the fact that NAPTIP already has an overwhelming number of cases to deal with in this regard, will the Legal and Prosecution Department of NAPTIP (to whom all cases are brought for legal opinions and prosecutions) be willing to investigate and prosecute novel rape allegations under the VAPP Act such as a man putting his finger inside a woman’s mouth, or a woman putting her tongue in a man’s mouth, or a man putting a pencil or any other object inside a woman’s mouth, or a woman putting her finger inside a man’s anus, or a woman putting a man’s penis inside her own mouth? There are many such instances under MHR, MHoR, FHR and FHoR. From a practical point of view, enforcing these aspects of the law by NAPTIP will be very challenging.

B. The Police

The police force is the principal law enforcement agency in Nigeria and is the only unit that has the general power to prevent and detect offenders, preserve law and order, apprehend offenders, protect lives and property and ensure the due enforcement of all laws and regulations in Nigeria. Because of this wide range of powers, the police can prosecute any offenders, including offenders that commit the offence of rape under section 1 of the VAPP Act, and this can be done without necessarily going through NAPTIP.

However, the practical issues that may affect the Nigerian police in respect of investigation and prosecution of the offence of rape under the VAPP Act are still the same issues affecting the Nigerian police in respect of investigation and prosecution of offences under other relevant laws. Various reports, both formal and informal, suggest that the Nigerian police often treat victims of rape as if they are the ones at fault, by engaging in what is known as victim-blaming. According to the OECD SIGI Index, ‘societal pressure to keep silent, victim-blaming and stigma surrounding sexual violence mean that few women report sexual assaults. Although accurate figures as to prevalence are unavailable, rape and sexual violence is recognized as a widespread, serious problem in Nigeria.’

If the police can engage in victim-blaming for the offence of rape under the old dispensation (vaginal rape), how would the police react to an allegation of rape under the VAPP Act which comes with a lot of slippery slopes? This is a great challenge to the practical enforceability of the rape provisions in the VAPP Act. Lack of funding has also been identified as one great factor hampering the effective prosecution of rape cases. Again, one may ask whether the Nigerian police will be willing to expend its insufficient budgetary allocation to pursue slippery rape allegations involving instances of MHR, MoHR, FHR and FoHR, when it has high-profile cases of murder, armed robbery and other felonies to investigate and prosecute. The answer to this is not so far-fetched.

It is against this background that the view is held that it will be practically and realistically challenging for the police to abandon investigation of ongoing serious cases of vaginal rape, murder, armed robbery and other felonies in order to now take up cases involving any of the highlighted slippery slopes in MHR, MHoR, FHR and FHoR.

Except for the extortionist tendencies of certain investigating police officers in Nigeria, it is doubtful that the police will be willing to expend money, resources and time to investigate alleged rape scenarios under the VAPP Act involving a man putting his finger inside a woman’s mouth, or a woman putting her tongue in a man’s mouth, or a man putting a pencil or any other object inside a woman’s mouth, or a woman putting her finger inside a man’s anus, or a woman putting a man’s penis inside her own mouth. In practice, it is highly doubtful that cases of rape like these will be investigated and prosecuted.

VII. Conclusion

Dynamism is one of the certain features of law, and all around the world laws are repealed, amended, re-enacted and reviewed regularly or on need basis to meet the challenges or practical realities of the modern world. The provisions of the VAPP Act on the offence of rape has also toiled this path, by seeking to de-genderise the existing gender-specific nature of rape law in Nigeria. In achieving this objective through redefinition of what constitutes rape, the new definition comes with a lot of slippery-slope instances that may make enforcement of the provisions on rape in the VAPP Act practically challenging. It will take time before society at large and the enforcement agencies will come to terms with some of the slippery-slope effects. In this regard, there is a need to look at the definition again for a redefinition that will do away with possible instances that come under the definition which the lawmakers may not have intended.

NAPTIP also has a huge role to play as an agency saddled with the responsibility to enforce the provisions of the VAPP Act. NAPTIP should continuously hold public enlightenment programmes to let the public know that under the VAPP Act, the slippery slopes under MHR, MHoR, FHR and FHoR highlighted in this article constitute the offence of rape. The public at large needs to know, as the instances are novel. Other issues such as non-inclusion of marital rape and the perceived conflict between sections 27 and 46 of the VAPP Act on the court with jurisdiction to handle cases under the Act should be looked into. On a final note, it should be stated that the expansion of rape to cover not only vaginal but also oral and anal rape is a welcome development.