Can a Husband Rape His Wife -By Edikan Ekanem

Edikan Ekanem

There have been several but serious problems on the issue of forceful sexual intercourse between spouses of marriages, sorting to know whether or not it would amount to rape. It is sad, shameful, absurd and ridiculous sarcastic to be hearing reports from courts of law on disputes and contention over sexual intercourse in legally constituted marriages while unmarried are unjustly having sex without two or three ears hearing. What a matrimonial slap and miasma.

What could then be the cause of this alarming sexual violence between spouses of these days? Does it mean that couples do no longer have concern for each other’s feeling in marriages? Does it mean that entertaining to other’s emotional feeling in marriages has become a misplaced priority? What are the possible ways to reduce the tendencies of this domestic and sexual violence in present day marriages?

The work is to elucidate and critically examine the justification or otherwise of the said allegation ‘of a man raping his wife’. The work will comparatively look at the ecclesiastical (scriptural) position of a man forcing himself on his wife. Without prejudice to any gender, the work as recommendations will offer the possible ways that such problems could be reduced and eschewed but with limitations and impediments on ground of practical resulting from the marital status of the writer.

In resolving this conundrum, the questions that should be borne in mind are: is a man guilty of rape over his wife as a victim? What is the position of law in this issue? Which law(s) regulates rape? How does the human society view this action?

It is imperative to know that since rape is a criminal offence under the Nigerian it is criminal jurisprudence, it is the regulating law of crime (criminal Code Act) that would determine the justification or otherwise of a man raping his wife.

To bring out the trust of the matter, it is apt to know the statutory definition of rape as contained in the criminal code. The offence of rape is contained in section 357 of the Criminal code which states: “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threat or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act or, in the case of married woman, by personating her husband, is guilty of an offence which is called rape.”

From the forgoing, it is clear and unambiguous that the provision uses the pronoun “woman or girl” as against “wife” to describe the victim of rape. The phrase “woman or girl” is letter is subsequently qualified by another phrase “without her consent” which ostensibly shows that the person to suffer the punishment attached to rape must commit the said act with a woman which is not his “wife”.

From the concluding limb of the provision, “or in the case of married woman, by personating her husband, is guilty of an offence which is called rape” shows that husbands are clearly exclude from the group of people that cam rape his wife but can be convicted over another person’s wife. This means that a wife cannot be raped by her husband.

Conjunctively, another question arises: does a husband need to collect consent every time from the in the face of every sexual intercourse?

Regarding the above poser, we have two schools of thought over this issue. As observed from the Facebook wall of Victoria Essien (a friend to the writer), many canvases that the husband should be obtaining consent from the wife before every intercourse. The second school believe that there is an implied consent on the side of the wife resulting from marriage which gives the husband a ready-made or automatic consent. What is the position of the law in this regard? How do we resolve the cacophony between these two groups? The law will decide.

It is settled and unanimously agreed that any marriage that is validly contracted, (either statutory or customary marriage) have are some legal effects that comes from it which right of consortium is among. Consortium is the collection of rights that a partner has in marriage that becomes a duty to the other.

According to Nwogugu in “Family Law in Nigeria”, “the parties to a marriage owe each other a duty to consummate it”. From the above, the wife need not be consenting every time before sexual intercourse because it is an obligation or a duty on her part to consummate the marriage which invariably becomes a right on the part of the husband. This right of consortium continues as long as the marriage is in existence which wilful and consistent refusal may a ground for nullity or dissolution of the marriage.

A marriage can be dissolve in only one ground in Nigeria. The ground is stated in the wordings of section 15(1) of the Matrimonial Causes Act which states: “A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably” which Section 15(2)(a) of the above law provides one of the conditions that will prove this fact as it states: “that the respondent has wilfully and persistently refused to consummate the marriage”. It should be noted here that the fact alone that a spouse has wilfully and persistently refused to consummate the marriage is enough for the court to dissolve the marriage without additional points.

From the foregoing analysis, it can be boldly answered affirmatively that a husband need not obtain consent from the wife in the face of every intercourse. Since consent is implied (embedded in marriage), we cannot say that the wife did not consent for the intercourse which will make him guilty of the offence of rape rather persistent refusal can even dissolve the marriage. Simply put, A HUSBAND CANNOT BE QUITY OF THR OFFENCE RAPE ON HIS WIFE.

On the other hand, it should be noted that this conjugal right is not exclusive in its sense. A spouse’s right to sexual intercourse must be reasonably exercised, and with due regard for the health and the disposition (mood) of the other spouse. While a duty exists to have sexual relations, a spouse is not obliged to summit to excessive sexual demands of the other party which may for instance, be detrimental to the party’s health.

The fact that a man cannot be prosecuted for the rape of his wife under section 357 of the criminal code does not mean that the man is exonerated from the other punishment as such man can still be prosecuted under section 360 of the code for indecent assault on his wife. The wife on the other hand should not use this as excuse to deprive her husband of a legal and scriptural right of sexual intercourse.

Tilting a little to the ecclesiastical realm, sexual relations is a God given gift to couples to enjoy in matrimony. It is God’s will that marriage mates derive maximum pleasure from sexual relations. Why do we so say?

“Drink water from your own cistern and flowing water from your own well…, and may you rejoice with the wife of your youth, a loving doe, a graceful mountain goat. Let her breasts satisfy you at all times. May you be captivated by her love constantly” says Proverbs 5:15-19.

This shows that pleasure from sexual intercourse should not be a terminating one rather it should be a recurring one. Phrases like “Let her breasts satisfy you at all times” and “Drink water from your own” and “captivated by her love constantly” have really buttress thus point.

Scripturally, on no account should a spouse be deprive of his sexual right because it forms a sin in the sight of God. “…let each man have his own wife and each woman have her own husband. Let the husband give to his wife her due, and let the wife also do likewise to her husband…the husband does not have authority over his own body, but his wife does. Do not deprive each other except by mutual consent for an appointed time” -2 Corinthians 7:2-5.

To this end, I will fittingly and aptly conclude this piece with the inspired words of Apostle Paul when he said: “But let all things (sexual intercourse in marriage) take place decently and by arrangement”.

Thank you.

Edikan Ekanem is a student of University of Uyo, a contemporary, a comparative analyst and a columnist. He can be reached at 08130015006 or eddy4jah@gmail.com.