UNCOMMON LAW: Can a woman rape a man?

Section 357 of the Criminal Code defines rape: "Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or ... by force or ... threats or intimidation ... or by fear ... or by false and fraudulent representation ... is guilty of ... rape." By this definition, if taken in isolation and on face value, only a woman can be raped. At common law, rape has traditionally been understood to be a crime perpetrated by men upon women. The gender-neutral word "person" used in the Criminal Code has thus been taken to mean "man".

But is this conception sustainable in today's world of feminism, sexual equality, and rising female aggressiveness?

Section 42(1) of the Constitution outlaws discrimination: "A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:- (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions." This clause prohibits discrimination on various grounds including sex. Among other things, it forbids the making or retention of discriminatory laws. It contains a rule that no man should endure any statutory burden from which women are excused, and vice versa; and no woman should enjoy any statutory benefit denied to men, and vice versa.

Section 357 of the Criminal Code is inconsistent with section 42(1) of the Constitution to the extent that the former discriminates against men in favour of women. The Code does this by subjecting men to a potential criminal liability from which women are exempt. This is a statutory burden contemplated by the anti-discrimination clause. And by excusing women as aforesaid, the Criminal Code grants them a statutory benefit not available to men, thus again violating the Constitution.

Section 1(3) of the Constitution elevates the Constitution above all other law: "If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void." Being inconsistent with section 42(1) of the Constitution, section 357 of the Criminal Code is voided to the extent of that inconsistency, that is, to the extent of its discriminatory repercussions against men. Section 1(3) of the Constitution thus compels a re-reading of section 357 of the Criminal Code to incorporate female-on-male rape.

Female-on-male rape is widely, but incorrectly, considered impossible because male arousal is thought to be always voluntary, whereas it is more often involuntary. Psychobiology has established that a man, or for that matter a woman, can be sexually aroused during an assault while genuinely resisting the encounter. The human body can betray a physical response not shared by the mind.

Presuming without conceding that arousal implies volition and thus negates rape, what about artificial arousal? A woman can use date rape drugs, or crushed Viagra secreted into a man's beer, to induce the hardness factor and have her way with the lubber. A homo erectus in that predicament cannot be said to be granting authentic consent.

A related point is that the law of rape does not even require penile turgidity. Unlike consummation in matrimonial law which requires meaningful penetration only attainable by a stiff penis, in criminal law rape is complete upon the slightest ‘penetration'. The flimsiest contact will qualify in the rape context. A flaccid penis can make such contact. The jurisprudential logic is that the law is aimed at preventing sexual assaults, the mischief against which it is directed. If a woman forces or tricks or drugs a man into that degree of contact, she has raped him.

Finally, sex, and therefore rape, need not entail penile penetration of the vagina. Bill Clinton was found to have had sexual intercourse with "that woman, Monica Lewinsky", although his penis never touched her vagina. Sex or sexual intercourse is now understood to include oral sex, for example. So if a woman, by fear, force or fraud, has oral sex with a man, she has raped that man.

Our legal system must grapple with the changing face of human sexuality.