‘Another rape’ I thought to myself, when I first heard about the rape of an Indian medical student in New Delhi last month. ‘Will the perpetrators be punished?’ We were shocked and repulsed by the brutality of the attack on the victim. Everything decent and good and holy and sacred in us screamed against the outrage.
Every day we looked for updates on her condition, we were devastated to hear she eventually died in a hospital in Singapore. We know she died simply because she was a woman, because a few men had decided they wanted ‘some fun’ and she was their randomly- chosen, savagely -used and callously- discarded plaything not a person, a daughter, or a sister.
Meanwhile, contrast our outrage at the Indian gang rape to our judgmental dismissal of the student who was repeatedly gang raped by the local football team in Steubenville, Ohio, in the United States. Did you even hear that story? The Indian student was described as the ‘perfect Indian daughter’; the Ohio victim was said to have been ‘drunk and disorderly’.
Search through the online content of any of Nigeria’s major dailies and you will find numerous reports of rape and rape/murder that attracted no reaction. In July 2012, a 23-year-old lady raped and murdered in Awka Etiti, Idemili South Local Government of Anambra State. In October 2012 Henry Edewo, and Emmanuel Isikhuime arrested for kidnapping, raping and murdering Mercy Peter in Auchi. On January 1, 2013, sixteen year-old student, Titilayo Adija raped and murdered in Lagos.
‘Rape culture’ in India, Pakistan, Nigeria and the United states are under scrutiny again. A cultural media war has started, the east blames ‘westernization’, the west blames ‘primitive’ misogynistic traditions in ‘less developed’ countries. My feminist sisters blame patriarchy, patriarchy blames feminism for making women want to be independent, for coming out in public and for being attractive.
When I imagine the young woman’s state of mind during the attack it doesn’t matter who or what is to blame. I just want the perpetrators caught and punished. I imagine her fear, her anguish. I imagine her fighting desperately for her life, till someone hits her over the head and she sinks into blackness, stunned, and only vaguely aware of the violation to her body. ‘Am I going to die? Will someone rescue me? Is there anybody out there?’.
In 2011 the Lagos state government with a population of almost 20 million reported 283 cases of rape out of which only 10 were prosecuted and convicted. Studies suggest more than half and sometimes as much as 84% of the female population have experienced sexual assault, rape or molestation in childhood. That is less than a 10% conviction rate and less than 0.0001% of the at risk female population.
While I appreciate the reason victims rarely report we need to start doing a better job of prosecuting the few cases that are reported. I’ve read many reasons given why rapists don’t get prosecuted or convicted. Victims don’t report; they withdraw charges; they settle out of court, investigators are incompetent and corrupt; prosecutors are ill- prepared or don’t appeal; judges are biased against women. Fixing the systemic problems will require a long term multi-sector strategic approach but we can contribute to the effort by holding the Director of Public Prosecution accountable for the performance of his department.
Some lawyers and prosecutors still think that corroboration is required for a rape conviction under Nigerian criminal law. Yet, in March 2011 the Supreme Court in Ogunbayo v. the State upheld its 2001 decision that said corroboration was a principle not a law and that the trial court need only caution itself before convicting on the uncorroborated evidence of a rape victim.
In that case, Fabiyi JSC said the 1989 Supreme Court decision that it was a principle of law that an accused cannot be convicted on the uncorroborated evidence of the victim and accuser removed from victims of rape the protection of s. 179 of the Evidence Act, which specifically prohibits the mandatory imposition of the number of witnesses to prove a crime. In many cases, the 1989 decision was interpreted to mean that there had to be another witness to the offence.
A number of rape convictions have been overturned recently on appeal based on section 12 of the Criminal Procedure Code. The CPC applies to the Penal Code in force in northern Nigeria. Section 12(1) says;
“Subject to the provisions to this Criminal Procedure Code any offence under the Penal Code may be tried by any Court by which such offence is shown in the sixth column of Appendix ‘A’ to be triable or by any Court other than a native court with greater powers.”
The offence of rape is contained in the Sixth Column of Appendix ‘A’ to the CPC. In other words, the only court vested with jurisdiction to try rape is the High Court and not the Upper Area Court – or any other court for that matter. So why are rape trials routinely brought before lower courts by prosecutors’?
Jurisdiction also needs to be clarified in the south of Nigeria where the Criminal Code and the Criminal Code Act are in force. The maximum sentence for rape in the criminal code is life imprisonment. Since only the High Court can impose the maximum sentence for felonies punishable by life imprisonment in the criminal code, doesn’t that mean that the High Court has exclusive jurisdiction for rape?
The Evidence Act was recently amended. Section 234 of the amended Act (Assented to on July 22, 2011) states:
“Where a person is prosecuted for rape or attempt to commit rape or for indecent assault, except with the leave of court no evidence shall be adduced, and, except with the leave, no question in cross examination shall be asked by or on behalf of the defendant about any sexual experience of the complainant with any person other than the defendant.’
Prior to this amendment a person accused of rape could bring evidence of a woman’s past sexual history as evidence of her ‘immoral character’ in defense to a charge of rape (Section 211 Evidence Act 2004). Does this new provision have the effect of a ‘rape shield law’?
These and other legal decisions and laws affecting rape need to be cited, applied and tested in the courts by prosecutors because they are the only ones who can arraign an accused person for rape in Nigeria. The offices of the Director of Public Prosecution DPP and the Attorney General of the Federation AGF have an obligation to the victims, their families and to the nation to provide justice for rape victims and ensure timely punishment for offenders.
Prosecutors in India and Nigeria need urgent support and training to improve their skills and legal knowledge. The perpetrators of last month’s dastardly rape in India have been arrested and charged. The Indian government has fast tracked the trial but it is just one case out of thousands still stuck in judicial limbo. The best tribute to the New Delhi student and other rape victims in India and in Nigeria would be ensuring that rapists/murderers are punished and that the people responsible for punishing them are able to do so.
While we continue to address our national apathy towards violence against women and work collectively to develop practical solutions, we should also count and celebrate our baby steps of progress; the first and only rape hotline set up in 2011 in response to citizens protests against the ABSU rape, last year’s celebrity rape walk and anti-rape protests by women in Osun and Enugu states, restrictions on the sale of the date rape drug Rohypnol in the fall out of Cynthia Okogu’s rape/murder and the work of organizations like Media Concern For Women And Children, Project Alert, Delta Women, CLEEN, and my own Women’s Crisis Center among numerous others.
January 21, 2013
Lesley Gene Agams Esq. is a feminist lawyer practicing in Abuja. You can find her on Twitter @MzAgams and at http://www.lesleyagams.com
(This article appeared in ThisDay Newpaper Law Page on Tuesday January 29, 2013)