A Silent Crime or a Silenced Crime? Re-examining the Stance of the VAPP Act on Marital Rape in Nigeria.
By Emmanuel O. Otumala
- INTRODUCTION
Globally, rape is recognized as a heinous crime due to the grave physical, psychological, and social scars it leaves on victims. In response, countries all over the world have enacted laws to criminalize non-consensual sexual acts, but the legal conception of rape that occurs within the confines of marriage remains contentious, particularly in Nigeria where it is culturally believed that marriage grants consent in perpetuity.
Historically, Nigeria’s Criminal laws expressly exempted spouses from rape liability, reinforcing the notion that marital rape cannot exist. However, the Violence Against Persons (Prohibition) Act (VAPP Act) was enacted in 2015 as a progressive legislation to prohibit all forms of violence against persons in private and public life. Despite this advancement, the absence of an explicit “marital rape” clause has led to widespread misconceptions that the Act is silent on the issue which leads to a false belief that spousal rape remains permissible in Nigeria.
This paper seeks to debunk this misconception and argues that the Act’s broad, consent-based definition of rape inherently criminalizes marital rape by making no distinction between married and unmarried persons. Through a detailed legal analysis, this study establishes that while the law is clear, societal resistance has silenced the crime in practice.
- THE VAPP ACT AND THE OFFENCE OF RAPE
The Violence Against Persons (Prohibition) Act (VAPP Act) is one of Nigeria’s most progressive legislations addressing violence, particularly gender-based violence.[1] Unlike the Criminal Code and Penal Code, which contained restrictive and patriarchal provisions on sexual offenses, the VAPP Act expands legal protections for victims of various forms of violence such as sexual violence, domestic abuse, emotional abuse, and harmful traditional practices.
Per Section 1 of the VAPP Act, a person commits the offense of rape if—
(a) he or she intentionally penetrates the vagina, anus, or mouth of another person with any part of his or her body or anything else;
(b) the other person does not consent to the penetration; and
(c) the consent is obtained by force or means of threat, intimidation, deceit, or any other fraudulent means.”
This definition introduces two major changes to the conception of rape in Nigeria. First, it adopts a gender-neutral approach which acknowledges that both men and women can be victims or perpetrators of rape. In doing this, it highlights all the possible portals through which rape may be perpetrated and recognises the use of external objects on the human body parts as constituting rape. Secondly, the Act establishes consent as the core element and its lack, in whatever form, the primary determinant of the offence of rape.
Before the VAPP Act, the Criminal Code and Penal Code provided a narrow and traditional definition of rape. For instance, the Criminal Code (Southern Nigeria) defined rape as “unlawful carnal knowledge of a woman or girl, without her consent, or if consent is obtained by force, threats, or fraud.“[2] It follows, therefore, that, to fully comprehend this legal definition of rape, one must first understand the meaning of carnal knowledge and, more specifically, what constitutes unlawful carnal knowledge.
Since carnal knowledge in itself is not inherently an offence under the law, provided it occurs with consent, it is essential to distinguish between lawful and unlawful carnal knowledge. The Criminal Code does not leave this definition ambiguous, as it explicitly defines “carnal knowledge” or “carnal connection” as an offense that is deemed completed upon penetration.[3] It further clarifies “unlawful carnal knowledge” as any “carnal connection which takes place otherwise than between husband and wife.”[4]
This statutory provision was affirmed in Posu v State[5], where the court held that the burden of proof in rape cases rests with the prosecution, which must establish the following essential elements beyond reasonable doubt to secure a conviction:
- that the accused had sexual intercourse with the prosecutrix;
- that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation;
- that the prosecutrix was not the wife of the accused;
- that the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent, or that the accused acted recklessly not caring whether the prosecutrix consented or not;
- that there was penetration.
In Ogunbayo v State[6], when presented with the opportunity to clarify whether Section 357 of the Criminal Code applies to marital rape, Ogbuagu JSC examined the provision but refrained from making a definitive ruling, merely stating that the issue was “debatable.”
Similarly, Section 282 of the Penal Code which is applicable in Northern Nigeria defines rape thus:
(1) A man is said to commit rape who … 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 the 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.
From the foregoing, it is evident that the foremost criminal legislations only conceived rape as an offence of which only unmarried women may be victims. Thus, explicitly exempting husbands from being charged with raping their wives and excluding men as likely victims of rape. These provisions effectively legalized marital rape and provide a legal basis for the socio-cultural assumption that marriage grants permanent sexual access to a spouse. However, the VAPP Act dismantles these outdated provisions by removing the marital rape exemption and shifting the focus to consent.
One of the major criticisms of the VAPP Act, however, which has necessitated this discourse is that it does not expressly address marital rape. Nonetheless, a closer examination of the law suggests that this omission does not equate to legal silence.
- THE MISCONCEPTION OF SILENCE: WHY DO PEOPLE THINK THE VAPP ACT DOES NOT COVER MARITAL RAPE?
Despite the progressive legal reforms introduced by the VAPP Act, there is a widespread misconception that the Act does not criminalize marital rape. The primary reason for this misconception is Nigeria’s long-standing legal history of exempting husbands from rape charges.[7] As already established, rape was traditionally defined under the Criminal Code and Penal Code in a way that explicitly protected husbands from legal liability, following the cultural belief that he has an unquestionable right to sexual access to his wife.[8] Thus, even though the VAPP Act introduced a new, consent-based definition of rape, many people, including legal practitioners, continue to default to these outdated legal frameworks, assuming that marital rape remains unrecognized in Nigerian law.
Beyond legal misinterpretations, deep-seated cultural and religious beliefs continue to fuel the narrative that marital rape cannot exist. Many Nigerian communities operate under the assumption that marriage grants perpetual sexual consent and this makes it difficult for society to acknowledge rape within marriage as a legitimate crime. The basis for this assumption is often seen as logical since marriage presupposes a union between a man and a woman, to the exclusion of all others. This notion of exclusivity extends beyond emotional and social obligations and may be interpreted in a way that restricts external interference, including that of the State.[9] As a result, legal and societal structures struggle to reconcile marital autonomy with the fundamental right to bodily autonomy and consent.
The marital union is often presumed to establish a social contract in which the husband dictates the terms while the wife surrenders herself fully, including her right to bodily autonomy. Cultural and religious norms create an expectation that a wife must unequivocally submit to her husband and this submission extends to sexual relations, regardless of her personal willingness.[10] As a result, many women have come to terms with the narrative that sexual obligations are a duty in marriage and that makes it socially unacceptable to refuse their husbands.[11] This deeply ingrained belief system discourages victims from reporting marital rape, as they are led to believe that seeking justice contradicts their supposed marital obligations.[12]
These cultural attitudes have negatively impacted the justice system and created an environment where cases of marital rape are rarely reported, prosecuted, or even taken seriously.[13] The result is a self-reinforcing cycle—because marital rape cases are not prosecuted, many assume that the law does not recognize the crime and the misconception continues.
- BREAKING THE SILENCE: THE POSITION OF VAPP ACT ON MARITAL RAPE
The widespread misconception that the VAPP Act does not criminalize marital rape stems from the law’s failure to expressly prohibit it. However, a closer examination of the wording and intent of the Act reveals that this perceived silence is more of a misinterpretation of the law rather than an actual legislative gap.
- DOES ‘SILENCE’ EQUATE EXCLUSION?
The major argument made by critics is that the VAPP Act does not explicitly mention “marital rape” as a distinct offense. However, this absence of specific terminology does not mean that the law condones or ignores marital rape. Instead, the Act removes any language that would suggest any form of exemption, thereby making its definition of rape applicable to all individuals, regardless of their relationship status.
It is trite that laws do not need to explicitly list every possible scenario for them to be applicable. The broad definition of rape in the VAPP Act inherently includes marital relationships because it criminalizes any form of non-consensual penetration, without making exceptions for spouses. This can be foregrounded in the principle of statutory interpretation that “the express mention of a thing implies the exclusion of others” (Expressio Unius Est Exclusio Alterius). This means that if a statute explicitly lists certain exceptions or conditions, it is presumed that no other exceptions exist. Conversely, if the law does not explicitly create an exemption, none should be implied. Simply put, the absence of a specific exception for marital rape means that the law applies to all forms of rape, including those occurring within the confines of marriage.
If the lawmakers had intended to exclude marital rape from the definition of rape, they would have done so explicitly, just as previous Nigerian laws did. Instead, the Act takes a forward-thinking approach and establishes consent or its absence as the sole determinant of rape.
The fact that the VAPP Act omits any mention of marriage as a defense is not an oversight but a clear assertion that rape is rape—regardless of the relationship between the victim and the perpetrator.
- THE VAPP ACT’S COMPREHENSIVE APPROACH TO VIOLENCE
Lastly, to fully grasp the VAPP Act’s stance on marital rape, it is essential to examine the its overarching objective. Understanding the legislative intent behind a statute is crucial in statutory interpretation, as it provides insight into what mischief the lawmakers sought to correct by enacting the legislation.[14] By analyzing the broader purpose of the Act, we can better determine whether its provisions inherently criminalize marital rape, even in the absence of explicit wording.
The VAPP Act was enacted, specifically to bridge the systemic gaps in Nigeria’s legal framework for addressing violence.[15] The legislative debates and advocacy efforts that led to its passage were driven by the need to expand the scope of sexual violence laws and ensure that all victims have access to legal remedies and protection.[16] Before its enactment, the existing statutes provided insufficient and outdated provisions for addressing domestic violence, sexual offences, and gender-based violence which leaves many victims without legal recourse.[17] Recognizing these gaps, the VAPP Act was enacted to establish a more comprehensive legal framework to broaden protections to cover various forms of violence and ensure that survivors not only have access to justice but also to rehabilitation and redress mechanisms.[18]
The Act therefore defines violence as “Any act or attempted act of harm, including sexual, physical, psychological, or economic abuse, inflicted on a person with the intent to control or intimidate.” The Act goes further to draw a distinction between violence in the public sphere and violence in the private sphere and defines the latter as:
“Any act or attempted act perpetrated by a member of the family, relative, neighbour, or member of a community, which causes or may cause any person physical, sexual, psychological, verbal, emotional, or economic harm.”
This broad definition acknowledges sexual violence as a form of harm and reiterates that non-consensual sex, even within marriage, constitutes a criminal offense. Since marital rape is a form of sexual harm inflicted by the spouse who is a member of the family, it naturally follows that it falls within the classification of “violence in the private sphere.”
More importantly, the Act also expands the scope of what constitutes violence to include emotional, verbal, and psychological abuse. It defines such abuse to mean a pattern of degrading or humiliating conduct, which includes repeated exhibition of obsessive possessiveness, that seriously invades a person’s privacy, liberty, integrity, or security.[19] This definition encompasses various forms of coercive control and psychological oppression which can be as damaging as physical harm, especially in intimate relationships where power imbalances often result in coerced sexual relations.[20]
This prohibition is particularly important in the context of marital rape, where victims may not experience overt physical force but are coerced into sex through intimidation, manipulation, emotional blackmail, or threats.[21] The Act’s recognition of psychological abuse as a punishable offence strengthens the argument that marital rape is a crime, even when physical violence is absent as is usually the case in incidents of marital rape.
One other salient aspect of this provision is that it challenges the patriarchal norm that marriage confers perpetual sexual consent. The inclusion of “obsessive possessiveness” sends a strong message that marriage does not grant absolute control over another person’s body, choices, or freedoms. This directly refutes the traditional justification for marital rape, which is often rooted in control rather than sexual desire. The Act also implicitly rejects the idea that marriage confers unlimited sexual access to one’s spouse by criminalizing any behaviour that violates a person’s liberty and integrity.
Thus, while the lack of an explicit marital rape provision may contribute to misinterpretations, the language of the Act as a whole makes it clear that rape, whether inside or outside marriage, is a criminal offense. Section 45(2) of the VAPP Act establishes the supremacy of the Act in matters within its scope. It explicitly provides that where other laws contain provisions on areas already covered by the VAPP Act, the provisions of the VAPP Act shall prevail. This means that, in jurisdictions where the VAPP Act is applicable, it takes precedence over pre-existing laws, including the Criminal and Penal Codes, in matters relating to rape, domestic violence, and other forms of violence against persons. Consequently, spousal rape is punishable in such states, provided the prosecution proves the offense beyond a reasonable doubt.
- CONCLUSION
This paper submits that Marital rape in Nigeria is not a silent crime under the Violence Against Persons (Prohibition) Act but a silenced crime. While critics rely merely on the absence of a specific clause to argue that the Act is silent on the issue of marital rape, an in-depth legal analysis of the Act suggests otherwise. The Act unequivocally criminalizes any form of non-consensual penetration, irrespective of the relationship between the perpetrator and the victim. If the law had intended to exclude marital rape, it would have done so explicitly, just as previous Nigerian laws provided immunity for husbands.
However, marital rape remains a silenced crime, not due to a gap in the law, but as a result of societal resistance that is borne out of socio-cultural and religious ideologies. This resistance has led to a widespread misconception that the Act does not cover marital rape and until there is a binding judicial pronouncement to correct this misinterpretation, marital rape will continue to be a crime that is recognized in law, yet suppressed in practice.
[1] Ibid.
[2] Section 357 of the Criminal Code
[3] Section 6 of the Criminal Code
[4] Section 6 of the Criminal Code
[5] [2011] 2 NWLR (Pt. 1234) 393
[6] (2007) 8 NWLR (Pt. 1035) 157.
[7] See Section 6 of the Criminal Code and Section 282(2) of the Penal Code.
[8] Ogunwale, A. O., Olaleye, O. S., & Ogundairo, J. A. (2024). A qualitative study of marital rape-related perceptions among women in Nigeria. African Journal of Biomedical Research, 27, 55–64.
[9] Uwaegbulem, Op. Cit. at 417.
[10] Ogunwale, Olaleye and Ogundairo (2024). Op. Cit.
[11] Ibid.
[12] Ibid.
[13] There are no reported cases of marital rape in Nigeria as at the date of this publication.
[14] Nourse, V. 2014. Elementary Statutory Interpretation: Rethinking Legislative Intent and History (2014). Boston College Law Review, Vol. 55, pp. 1613-1658, , Available at SSRN: https://ssrn.com/abstract=2561598
[15] Onyemelukwe, C. (2016). Legislating on violence against women: A critical analysis of Nigeria’s recent Violence Against Persons (Prohibition) Act, 2015. DePaul Journal of Women, Gender, and the Law, 5(2), Article 3.
[16] Ibid.
[17] The Criminal Code and Penal Code failed to adequately define or criminalize psychological abuse, coercion, and harmful traditional practices and this created significant loopholes in victim protection.
[18] Ibid. Onyemelukwe.
[19] Section 46 of the VAPP Act.
[20] Umoren E.J. (2023) The Need for The Entrenchment of Marital Rape in Nigeria’s Criminal Jurisprudence, Global Journal of Politics and Law Research, Vol.11, No.6, pp.1-8.
[21] Safe Haven of Ashland. (2017). Marital rape: The sexual assault no one talks about. Retrieved February 20, 2025 from https://www.safehavenofashland.org/blog/2017/10/20/marital-rape-the-sexual-assault-no-one-talks-about
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