Sometime ago, I watched a video by a Nigerian comedian that was supposed to be a comedy skit. The skit starts off with a woman in a medical office, waiting to be seen by a medical professional. A man enters the room and the woman assumes that he is a doctor. She tells him her problem and he says he needs to conduct a vaginal exam (for the purpose of diagnosis and treatment, I suppose). The woman complies, lays on the patients’ table and the presumed doctor “inspects” her private part. As he is doing so, another man walks into the room. It turns out the presumed doctor is not a medical professional, but a driver or cleaner (I don’t remember which). The man who interrupts the vaginal examination in progress turns out to be the real doctor. He apologises to the female patient for the actions of the driver/cleaner, and then tells the woman that he also has to conduct a vaginal examination. In response the woman, replies with a submissive “Again?” End of skit.
I did not get the joke. What I got was a criminal offence being offered up for laughs. Rape and other sexual offences are a very serious problem in Nigeria, and if artists do not want to use the power of their voice to speak against an evil in society, that is up to them. However, using their voice to perpetuate those evils that society is trying to overcome is another thing altogether.
In the last couple of months, different accusations have brought the issue of sexual offences to the table of social media discussions and what most people agree on is the difficulty in seeking and getting justice for victims of sexual offences. This is not a problem that is peculiar to Nigeria. Even in jurisdictions like the United Kingdom with arguably more developed laws and awareness on sexual offences, prosecuting these cases is difficult – only a few are prosecuted because the prosecution is tasked with the heavy burden of proving beyond a reasonable doubt that the sexual activity between the complainant and the accused was unlawful; of the prosecuted cases, convictions rates are very low, less than 15 per cent. Murder and rape take the top spots in criminal offences. The opprobrium that follows convictions in those offences and the effect on the life of the accused justify the high burden of proof for the prosecution. However, victims of sexual offences do not come out of the experience unscathed either.
Consent often lies at the heart of sexual offence accusation. What is consent? Only recently have some jurisdictions taken the pains to detail the definition of consent in legislation, but generally, from common law rules, consent is a voluntary agreement to the sexual activity by a person who has the mental capacity and knows all the relevant facts.
This brings me back to our skit. I do not know if there has been any sexual assault or rape case in Nigeria that involves fraudulently obtained consent but the UK case of R v Tabassum*easily comes to mind. In that case the Tabassum represented himself to some women as a breast cancer specialist conducting research for breast cancer. From the facts of the case, there was no indication that he held himself out to be medically qualified, but his victims assumed that he was. Part of his research was to have the women complete a questionnaire and also examine their breasts. The women consented to the breast examinations. At trial, they all testified that they would not have consented to the examinations had they been aware that he was not a specialist as he claimed. Their consent was held not to be valid and the defendant was convicted for indecent assault. On appeal, his conviction was upheld and the court said, “…there was no true consent. [The women] were consenting to touching for medical purposes not to indecent behaviour, that is, there was consent to the nature of the act but not its quality.”
It is clear from recent cases in the UK that the courts are willing to take a broad approach to deception as to the quality or purpose of the act, where consent is given to the nature of the act, but that consent is vitiated because of deception as to the quality of the act.
R v McNally**, a case that received wide media coverage is a good example of this. In this case, the defendant, a female, pretended to be a male in a relationship with another female. The couple met on the Internet and started a friendship that blossomed into a long distance romance. They got to meet on a few occasions and were sexually intimate and it was alleged that the defendant penetrated the victim with a strap on dildo. The courts took the position in this case that there was no free agreement, stating that,“while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.”
While some people want to hold on to the myth that “real rape” involves a stranger, holding a knife to someone’s neck, a few jurisdictions are taking the reality into consideration and enacting laws to deal with the difficulties that this myth poses for prosecuting and convicting sexual offenders. While these rules around consent and appropriate sexual conduct may be developing outside our jurisdiction, it is important to keep them in mind for two reasons. First, they inform how we can address our difficulties with sexual offences. Second, they are cautionary tales for people who find themselves in jurisdictions outside of Nigeria and ignore the context against which they engage in sexual activities with citizens there.