Abstract
Sexual violence remains a pervasive human rights challenge in Nigeria despite constitutional guarantees of dignity and liberty. This article provides a comprehensive examination of the Violence Against Persons (Prohibition) Act 2015 (VAPP Act), which represents Nigeria’s primary legislative response to sexual and gender-based violence. The research adopts a doctrinal methodology, employing analytical and comparative approaches to evaluate the Act’s provisions, implementation challenges, and compliance with international human rights standards. The study finds that while the VAPP Act introduced progressive reforms including gender-neutral rape definitions and expanded criminalisation of sexual violations, its effectiveness is critically undermined by three fundamental deficiencies including the absence of an affirmative statutory definition of consent, unresolved ambiguity regarding marital rape criminalisation, and systemic enforcement failures across the criminal justice system. These shortcomings perpetuate low conviction rates, deny survivors access to justice, and potentially breach Nigeria’s obligations under international law, particularly the due diligence principle articulated in regional instruments and European Court of Human Rights jurisprudence. Drawing comparative insights from the United Kingdom’s Sexual Offences Act 2003, the article recommends comprehensive legislative amendments to establish an affirmative consent standard, create statutory evidentiary presumptions, and explicitly abolish the marital rape exemption. It further proposes institutional reforms including specialised training for justice sector personnel, establishment of Sexual Offences Courts, enhanced victim support services, and sustained cultural engagement to transform harmful societal norms. The article concludes that bridging the gap between the VAPP Act’s normative promise and implementation reality requires integrated reform across legislative, institutional, and cultural dimensions to fulfil Nigeria’s human rights obligations and ensure effective protection against sexual violence.
1. Introduction
Sexual violence remains one of the most pervasive and intractable human rights challenges confronting contemporary Nigerian society1. It was against this backdrop that the Violence Against Persons (Prohibition) Act (VAPP Act), enacted in May 2015, emerged as a landmark legislative intervention aimed at remedying longstanding deficiencies in Nigeria’s legal framework governing sexual and gender-based violence2. The VAPP Act marked a significant departure from the antecedent statutory regimes in several important respects. Most notably, it substantially expanded the definition of rape, it is gender-neutral in formulation, and it extends criminal liability to anal and oral penetration. It also explicitly recognises circumstances in which consent is vitiated by fraud, deception, or the administration of substances that impair the victim’s capacity to exercise free and informed choice3.
Despite these commendable innovations, the VAPP Act has fallen short of the transformative impact envisaged by its proponents. Indeed, the Act itself contains doctrinal gaps and ambiguities that undermine its effectiveness and generate uncertainty in prosecution4. This article undertakes a comprehensive examination of the limitations of the VAPP Act and proposes reform pathways informed by comparative and international human rights law.
2. The VAPP Act and the Doctrinal Gaps in the Definition of Rape and Consent
The Violence Against Persons (Prohibition) Act 2015 represents a watershed moment in Nigerian criminal jurisprudence, introducing a substantially reformed definition of rape that departs significantly from the narrow constructions contained in the inherited Criminal and Penal Codes5. The Criminal Code applicable in the southern states defined rape restrictively as unlawful carnal knowledge of a woman or girl without her consent, or with consent obtained by force, threats, intimidation, fear of harm, or false and fraudulent representation as to the nature of the act . The Penal Code applicable in the northern states similarly defined rape in terms of sexual intercourse with a woman against her will, without her consent, or with consent obtained by putting her in fear of death or hurt6.
The VAPP Act undertook a comprehensive reimagining of the offence of rape that addressed several of these historical deficiencies. Section 1(1) of the Act provides that a person commits the offence of rape if he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else without consent, or where such consent is obtained by force or means of threat or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or the use of any substance or additive capable of taking away the will of such person or if the consent is obtained by the use of force or threats7.
However, notwithstanding these progressive features, the VAPP Act’s definition of rape contains significant doctrinal gaps and ambiguities that undermine its effectiveness and create uncertainties in prosecution. The most fundamental of these deficiencies concerns the statutory treatment of consent, which lies at the heart of the offence of rape. Section 1 of the VAPP Act, while enumerating circumstances that negate consent, fails to articulate any positive definition of what actually constitutes valid consent8. The Supreme Court in Iko v. The State9 defined rape as “forcible sexual intercourse with a girl or a woman without her giving consent to it” and held that the consent of the victim is a complete defence to a charge of rape. However, the Court’s formulation in Iko reflects precisely the negative, absence-based conception of consent that the VAPP Act’s silence perpetuates. More recently, in Oludotun Ogunbayo v. The State10, the Supreme Court reaffirmed this definition, holding that rape means “forcible sexual intercourse with a girl or a woman without her giving consent to it.”
3. The Unresolved Question of Marital Rape: Between Law and Culture
The question of whether marital rape constitutes a criminal offence under Nigerian law remains one of the most contested and ambiguous aspects of the VAPP Act’s reform agenda. This ambiguity arises not from any explicit provision exempting husbands from prosecution, but rather from the Act’s studied silence on the question of spousal sexual violence and the consequent uncertainty regarding whether the general definition of rape extends to conduct occurring within marriage11.
The VAPP Act’s treatment of marital rape is notably ambiguous. Section 1(1) defines rape in gender-neutral terms without any explicit exception for spouses, and unlike the Penal Code, does not contain any provision stating that sexual intercourse between husband and wife falls outside the definition of the offence. The absence of an explicit exception creates the possibility of interpreting the Act as having implicitly abolished the marital rape exemption, bringing Nigeria into alignment with the majority of common law jurisdictions that have abandoned this doctrine.
4. Evidentiary Burdens and Systemic Enforcement Failures
The most significant impediment to the effectiveness of the VAPP Act lies not in its substantive provisions alone but in the systemic enforcement failures that prevent the law from translating into meaningful protection for potential victims and accountability for perpetrators. These failures operate at multiple levels of the criminal justice system, from initial reporting through investigation, prosecution, and adjudication, creating a cumulative effect that perpetuates impunity and undermines public confidence in the legal system’s capacity to address sexual violence. For example, in terms of evidentiary burden, Nigerian courts have consistently held that medical evidence is not indispensable in rape prosecutions. In Ndewenu Posu & Anor v. The State 12, the Supreme Court held that evidence of corroboration of the victim in a rape case is not required as a matter of law, though it remains a well-settled practice. The Court specified that where rape is denied, corroboration may include medical evidence showing injury to the private parts, semen stains on clothes, or evidence of a struggle. The Court of Appeal in Da’u v. State13 reaffirmed this position, holding that the sworn evidence of the victim will not require further corroborative evidence before the courts can rely on it. Nevertheless, despite these progressive judicial pronouncements, prosecutors and trial judges continue to treat the absence of medical evidence as fatal to the prosecution’s case. The Court of Appeal in John Julius v. The State (2019)14 reiterated that penetration, however slight, is sufficient to prove rape and that it is “not necessary to prove an injury or the rupture of the hymen to constitute the crime of Rape,” yet this principle remains inconsistently applied at trial level. The gap between the law as written and the law as applied represents a fundamental challenge to the rule of law and raises serious questions about the Nigerian state’s compliance with its international human rights obligations15.
5. A Comparative Lens: Lessons from the United Kingdom’s Sexual Offences Act 2003
The United Kingdom’s Sexual Offences Act 2003 represents a comprehensive legislative framework for addressing sexual violence that offers valuable lessons for Nigerian law reform. Enacted after extensive consultation and drawing upon the recommendations of multiple law reform bodies, the Act embodies a coherent approach to defining sexual offences, establishing consent standards, and providing evidentiary guidance that addresses many of the deficiencies identified in the VAPP Act16.
The definition of consent contained in Section 74 of the UK Act establishes a clear, affirmative standard that focuses on the victim’s exercise of autonomous choice17. The provision states that “a person consents if he agrees by choice and has the freedom and capacity to make that choice”. This formulation embodies several principles that distinguish it from the negative definition approach adopted in the VAPP Act. First, it defines consent positively in terms of what it is, agreement by choice, rather than exclusively in terms of what it is not. Second, it introduces the concepts of freedom and capacity as essential elements of valid consent, recognising that apparent agreement may be vitiated where the victim lacks genuine freedom to choose or the capacity to exercise choice meaningfully18. Lastly, it focuses attention on the victim’s subjective experience and decision-making process rather than on external manifestations of agreement or absence of resistance.
6. Bridging the Gap: Recommendations for Reform
Bridging the gap between the law’s normative promise and its practical reality requires comprehensive reform across multiple dimensions, encompassing legislative amendments, institutional strengthening, cultural engagement, and enhanced federal-state coordination.
6.1 Legislative Reforms: Amending the VAPP Act to Address Doctrinal Gaps
The most fundamental reforms required are those addressing the doctrinal gaps and ambiguities identified in the VAPP Act’s substantive provisions. The Act’s definition of consent, currently framed in negative terms as a list of circumstances that vitiate consent, should be amended to incorporate a positive, affirmative standard that provides clear guidance to courts, prosecutors, and the public. Drawing upon the model of Section 74 of the United Kingdom’s Sexual Offences Act 2003, the amended provision should define consent as occurring where a person agrees by choice and has the freedom and capacity to make that choice19.
6.2 Institutional and Policy Reforms: Strengthening Enforcement Capacity
Legislative amendments alone cannot address the enforcement deficits that have undermined the VAPP Act’s effectiveness. Substantial investment in institutional capacity, training, and procedural reform is essential to ensure that the law’s protections translate into meaningful outcomes for survivors. The National Agency for the Prohibition of Trafficking in Persons, as the primary agency responsible for administering the Act, requires enhanced resources, specialised personnel, and strengthened coordination mechanisms to fulfil its mandate effectively. Specialised training for law enforcement officers, prosecutors, and judges is essential to address the knowledge gaps and attitudinal barriers that impede effective handling of sexual violence cases. The establishment of specialised Sexual Offences Courts represents a crucial institutional reform that would significantly enhance the justice system’s response to sexual violence.
6.3 Cultural and Societal Engagement: Transforming Norms and Attitudes
Legal reform alone cannot transform the deep-seated cultural attitudes and social norms that sustain sexual violence and impede access to justice. The cultural belief that marriage grants perpetual consent to sexual intercourse, the stigmatisation of victims who report sexual violence, and the tendency to resolve such matters within families rather than through the formal justice system all reflect broader societal attitudes that the law must engage with and seek to transform. Public awareness campaigns are essential to address the significant knowledge gaps.
7. Conclusion
The path forward requires comprehensive reform across multiple dimensions. Legislative amendments to the VAPP Act should address the doctrinal gaps identified in this article, adopting an affirmative definition of consent, establishing statutory presumptions to guide evidentiary determinations, and explicitly abolishing the marital rape exemption. Institutional reforms should strengthen the capacity of law enforcement, prosecutorial, and judicial actors to handle sexual violence cases effectively and sensitively, through specialised training, enhanced resources, and the establishment of specialised Sexual Offences Courts.
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12. (2011) LPELR–1969 (SC)
13. (2020) LCN/14058(CA)
14. (2019) LCN/13775(CA)
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