Rape and sexual assault are very touchy subjects that should be handled delicately, but when the Sexual Offences Bill 2015 was passed in June, it seemed like the Senate's handling was anything but delicate. Going only by headlines like "Senate Passes 46 bills in 10 minutes", most people got the impression that the majority of senators had not even read the bill because it hadn't gone through the first, second or third readings. However, this is just one of many misconceptions surrounding the bill. In actual fact, it had gone through the first and second readings in 2013; therefore, most senators should have already gotten a good look at the bill before it was passed. Generally, law is a tricky matter, and for us to understand what exactly this bill will mean for us Nigerians we’ll need to put on our lawyers’ hats (or wigs).
The 11-year-old question
The most controversial portion of the bill is sub-section 2 of clause 7 which prescribes a life sentence for defiling a child who is 11 years old or younger. Without reading the actual wording of the bill, this could be taken to imply that the legal age of consent is 11. This is simply not true. Reading the clause in its entirety quickly makes clear what is actually going on. Sub-sections 3 and 4 of the same clause state that a person convicted of the defilement of a child of 12 to 15 years and 16 to 18 years respectively is liable to imprisonment for life.
Simply put, anyone who defiles a person under 18 could get a life sentence, but if the victim is very young (i.e. 11 or younger) the perpetrator automatically receives the sentence. So no, the bill does not make 11 years the legal age of consent, it just creates a higher level of protection for really young victims. This actually makes sense when you consider that there is less likely to be any grey area in terms of consent with say, an 8-year-old, than there is to be in the case of 16-year-old.
AIDS and abettors
What people should be worried about (but aren’t) is the bill’s ambiguity in its criminalisation of the transmission of HIV. On the one hand, clause 26 takes us a step forward by making it illegal to deliberately transmit HIV to other people, but we encounter serious problems with sub-sections 7 and 8b of the same clause. Sub-section 7 states that:
Where a person is convicted of any offence under this Act and it is proved that at the time of the commission of the offence, the convicted person was infected with HIV or any other life threatening sexually transmitted disease whether or not he or she was aware of his or her infection, notwithstanding any other sentence in this Act, he or she shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.
The problem here is that this clause automatically stipulates a higher level of sentencing for somebody just because he/she is HIV positive. The crimes covered by this bill do not always involve sexual contact; they also include indecent exposure, non-disclosure of conviction of sexual offenses, child pornography, false allegation, to mention but a few. If there is no sexual contact involved in the course of an action, then there is no chance that HIV will be sexually transmitted to the victim, so why this stipulation?
Say for instance, Mr. A is convicted of indecent exposure, he would normally be facing a sentence of at least five years or a fine of at most ₦20,000 or both. However, because of this clause, Mr. A would be tested for HIV before he is sentenced, and if he is HIV positive (whether or not he knew of this status), the sentence would automatically increase to at least fifteen years.
Clearly, this is a serious issue. It is one thing to punish people for trying to give others HIV, but it is quite another to increase someone's punishment simply because he/she was HIV positive at the time the offence was committed. It would be just as bad as sentencing a woman convicted of stealing to life imprisonment, simply because she happened to be HIV positive at the time. The motive for this sub-section doesn't seem to be to dissuade anyone from knowingly transmitting HIV because it doesn't bother to establish whether:
a) There was any risk of transmission
b) The culprit knew his/her HIV status.
To make matters worse, sub-section 8b includes a "clarification" of what it means to be infected with HIV at the the time of committing an offence:
If it is proved that a person was infected with HIV after committing an offence referred to in this Act, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV when the offence was committed.
It is common knowledge that court cases in Nigeria can drag on for years, but this sub-section completely ignores the fact there could be a long interval between a person's arraignment and conviction. If 2 years after you commit a sexual offence, you are finally convicted, the bill assumes that you had been HIV positive all along, and could not have contracted the disease in that 2-year interval. So, if you want to avoid the special sentencing reserved for HIV positive people, be sure to produce a test showing you were negative at the time you committed the crime.
The Baby (minus the bathwater)
Let’s not overlook some very important things that this bill does achieve though. Firstly, it recognizes that men can be victims of rape. This is a huge step forward. Currently, the Criminal Code, which applies to southern states, and the Penal Code for the north define rape only as an act committed by men against women. This bill includes both genders in the definition of both perpetrator and victim, making it easier to prosecute anyone who commits a sexual offence and closing a huge loophole in existing anti-rape legislation.
Secondly, clause 29 gets rid of two Nigerian go-to defences when we've done something wrong: culture and religion. It should go without saying that if something is against the law, it doesn’t matter whether you did it for cultural or religious reasons. But just in case anyone was planning to use that excuse, this bill makes it clear that you can't by stating that:
Any person who for cultural or religious reasons forces another person to engage in a sexual act or any act that amounts to an offence under this Act is guilty of an offence and it liable upon conviction to imprisonment for a term of not less than ten years.
This would definitely be useful in building cases against religious men and women who prey on their congregations sexually, and "native doctors" who tell men to sleep with young children to cure their diseases.
Finally, we come to my personal favourite, clause 34 which prevents an accused person from introducing information about a victim’s previous sexual history in a case without permission from the court under specific conditions. One of the biggest problems with sexual assault and rape cases in Nigeria is victim-blaming. People often don’t take rape victims seriously if they are perceived as being promiscuous or sexually active. This clause creates a hurdle to bringing that mentality into the courtroom. If, for instance, someone rapes a prostitute, the bill makes it difficult for the defendant to bring up her sex trafficking activities, unless the rape took place in that context.
Where the buck (or bill) stops
An overarching and pressing question though is whether this bill will actually affect the majority of Nigerians. As it stands, sexual offences appear to be on the residual legislative list, i.e. in the purview of the state houses of assembly. Therefore, if the bill is assented by the president and becomes an Act, it is likely to only apply to the FCT. It would be left to the State legislatures to adopt the law and domesticate it in their own states. If they are not happy with the law as is, it may not happen. We saw this clearly in the case of the Child Rights Act of 2003 that was passed by the National Assembly, and has not yet been adopted into law in 12 states. There’s also the small matter of implementation, but that’s really a question for the executive and judiciary, not the legislators.
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