Is Marital Rape really not a crime in Nigeria

Marital Rape in Nigeria: Is It Really Not a Crime?

For decades, Nigerian law reinforced the outdated belief that a husband could not rape his wife. Under *Section 357 of the Criminal Code* and *Section 282(2) of the Penal Code**, marital rape was effectively exempted, reflecting the patriarchal notion that marriage amounted to perpetual consent. However, the enactment of the Violence Against Persons (Prohibition) Act (VAPP Act) 2015* fundamentally changed the legal landscape by making *consent—not marital status—the defining element of rape*.

*The Law Has Changed—But Has Society?*

Section *1 of the VAPP Act* provides that rape occurs where a person intentionally penetrates another without consent or where consent is obtained through force, intimidation, threats, deceit, or fraud. Notably, the Act *does not exempt spouses**. This omission is legally significant. Applying the principle of statutory interpretation, Expressio Unius Est Exclusio Alterius* (the express mention of one thing excludes others), where the legislature intended to preserve marital immunity, it would have expressly stated so—as previous statutes did.

More importantly, *Section 45(2) of the VAPP Act* gives the Act overriding effect over inconsistent laws on matters within its scope. Consequently, in states where the VAPP Act applies, its consent-based framework supersedes the restrictive provisions of the Criminal and Penal Codes on rape.

*Judicial Authorities*

The Supreme Court in *Posu v. State* reaffirmed the essential ingredients of rape under the Criminal Code, including proof that the victim was not the accused's wife—a requirement rooted in the old statutory regime.

In *Ogunbayo v. State*, the Supreme Court acknowledged that the issue of marital rape under the Criminal Code was "debatable" but stopped short of resolving it.

Today, however, the VAPP Act has shifted the legal focus from *marriage* to *consent*, making those earlier authorities less persuasive in jurisdictions where the Act is applicable.

*Recent Reality*

Despite increased awareness of gender-based violence across Nigeria, reports of *sexual abuse within marriage remain grossly underreported*. Cultural beliefs that marriage grants automatic and permanent sexual consent continue to discourage victims from seeking justice. This societal silence—not the law—is now the greatest obstacle to accountability.

The VAPP Act also recognizes *psychological, emotional, verbal, and sexual violence* within domestic relationships, making it clear that coercion, intimidation, manipulation, or threats can invalidate consent, even between spouses.

*Key Takeaway*

Marriage is *not* a blanket licence for non-consensual sex. Under the *VAPP Act**, the decisive question is whether there was free and voluntary consent*, not whether the parties are husband and wife.

The law has evolved. Society, enforcement agencies, and even legal practitioners must evolve with it. Victims of marital rape deserve the same constitutional protection, dignity, and access to justice as every other survivor of sexual violence.

⚖️ *Law must protect human dignity—not cultural misconceptions. Consent does not expire at the altar.*

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