INTRODUCTION
This is one of those legal puzzles that always sparks heated debate among students, lawyers, and even activists. The question is simple: can a husband be guilty of raping his own wife under Nigerian law?
At first glance, many would say “of course, yes — rape is rape, even in marriage.” But when you put the law under the microscope, the answer is not so straightforward. It depends on which law you look at, the part of Nigeria you are in, and whether modern reforms like the Violence Against Persons (Prohibition) Act (VAPP) apply there.
Let’s carefully walk through the laws, cases, and principles that shape this controversial subject.
1. The Duty of Consummation in Marriage
Marriage under Nigerian law is not just about living together — it comes with duties. One of these is the duty to consummate the marriage, meaning that the couple is expected to complete their union through sexual intercourse.
This is so important that the Matrimonial Causes Act, Section 15(2)(a), actually lists “refusal to consummate” as a ground for divorce. That’s why, at first sight, some argue that a husband forcing sex cannot amount to rape, since intercourse is part of the marital duty.
But the criminal law does not always walk in the same direction as family law — and this is where the debate starts.
2. The Criminal Code and Penal Code The Old Guard
Nigeria operates two main codes depending on the region:
Criminal Code (Southern Nigeria): Section 357defines rape as unlawful carnal knowledge of a woman or girl without her consent. But Section 6 goes further to define “unlawful carnal knowledge” as sexual intercourse “otherwise than between husband and wife.” In simple terms, sex between husband and wife is not considered “unlawful carnal knowledge,”unlawful carnal knowledge,” so rape within marriage does not exist under this Code.
Penal Code (Northern Nigeria): Section 282 states clearly that a man commits rape in certain circumstances (without consent, by force, by threat, etc.). But subsection (2) adds: “Sexual intercourse by a man with his own wife is not rape if she has attained the age of puberty.” That’s an express marital exemption.
So, whether you are in the South under the Criminal Code or in the North under the Penal Code, the inevitable conclusion is the same: marital rape is not recognised under these laws.
3. The Violence Against Persons (Prohibition) Act (VAPP) The Game Changer?
In 2015, Nigeria enacted the Violence Against Persons (Prohibition) Act. This law was meant to modernise the criminal justice system and tackle gender-based violence.
Section 1 of the VAPP Act defines rape in broad, gender-neutral terms. It says:
“A person commits the offence of rape if he or she intentionally penetrates the vagina, anus, or mouth of another person without that person’s consent.”
Notice something? Unlike the Criminal and Penal Codes, this provision does not make any exception for marriage. At least on paper, this opens the door to prosecuting marital rape.
But here’s the catch: VAPP was passed by the National Assembly, and by the Nigerian Constitution, federal criminal law only directly applies in the Federal Capital Territory (Abuja). For states to use it, they must “domesticate” it that is, pass it into law in their own Houses of Assembly.
Some states have domesticated VAPP (like Lagos, Enugu, Oyo, Anambra, Kaduna, Ekiti and more) while others are yet to do so. In states where VAPP has not been domesticated, the old Criminal Code or Penal Code still applies meaning the marital exemption remains intact.
So the position under VAPP is promising, but its reach is patchy.
THE “IMPERSONATION” CLAUSE — CLEARING A MISUNDERSTANDING
One part of VAPP has created confusion. It says consent is invalid if, in the case of a married person, it is obtained “by impersonating his or her spouse.”
Some people have misread this as direct recognition of marital rape. But a careful reading shows that it actually targets fraud cases. For example
If a man pretends to be a woman’s husband and sleeps with her, that’s rape.If a woman deceives a man into believing she is his wife and obtains sex, that’s also rape.
This clause is not about ordinary marital intercourse, but about preventing impersonation from being excused as adultery. So it doesn’t, by itself, outlaw marital rape.
COMMON LAW AND PERSUASIVE AUTHORITIES
Nigeria, being a common law country, often looks to English cases for guidance. Historically, English law recognised a marital exemption, as seen in cases like:
R v Clarke (1949)
where the court reaffirmed that a husband could not be guilty of raping his wife while the marriage subsisted.
R v Miller (1954)
where the court stated that a husband could not be guilty of rape unless the marriage had been legally terminated.
These old English cases influenced Nigeria’s early laws. But note: in 1991, the House of Lords in in R v R abolished the marital exemption in England. Nigeria has not made that leap yet, though pressure from activists and human rights groups continues to mount.
CIVIL REMEDIES VERSUS CRIMINAL SANCTIONS
Even if the criminal law shuts the door on marital rape in many states, the civil law still provides remedies. A wife facing constant sexual pressure or cruelty can seek:
Divorce (non-consummation, cruelty, or intolerable behaviour);
Judicial separation;Protection orders or injunctions.
But the key point is this: the remedy lies in civil family law, not in criminal rape charges unless the state in question has domesticated VAPP.
The Reality on Ground on Marital Rape in Nigeria
Even where VAPP exists, getting convictions for marital rape is tough. Why? Proving lack of consent is always difficult in intimate settings.
Medical evidence may be lacking if the victim delays reporting. Cultural and family pressures often stop cases before they even reach court.
moreso,Police and prosecutors sometimes treat it as a “family issue” rather than a crime.
So while the law is slowly changing, the reality is that cases are rare and convictions even rarer.
INTERNATIONAL INFLUENCE
International bodies like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) urge countries to criminalise marital rape. But in Nigeria, international treaties are not directly binding unless domesticated by the National Assembly. That means such instruments are persuasive but not enforceable on their own.
cheating under Section 421 Criminal Code
THE VERDICTON MARITAL RAPE IN NIGERIA
So, can a husband be guilty of raping his wife under Nigerian law?
Under the Criminal Code and Penal Code (still in force in many states): No. The law explicitly excludes marital rape.
Under the VAPP Act (in Abuja and states that have domesticated it): Yes, But potentially. The Act recognises non-consensual sex broadly, with no exception for marriage.
So far, as at the time of making this opinion no case is actually known to the author on this subject matter, thus until the Nigerian courts gives a Judicial pronouncement, the answer remains a weak Yes when relying on VAPPA ACT 2015.
Practical reality: Even where the law permits prosecution, cultural, evidential, and enforcement barriers mean convictions are very rare.
FINAL REFLECTIONS ON ISSUES IF MARITAL RAPE
Marriage under the law is often treated as a contract and like every contract, it comes with rights and obligations. When you say “I do,” you are legally agreeing to many things, including a duty of sexual relations. That’s why the law has been slow to recognise marital rape.
But society is changing. Feminist movements, human rights advocacy, and the gradual spread of VAPP are reshaping how consent is understood even within marriage. The law may not be fully there yet, but it is moving.
For now, the legal verdict is clear: as of today, in most Nigerian states, a husband cannot be guilty of raping his wife. But in Abuja and states with VAPP, the door is open for a different answer.
Globally, the issue of marital rape has gained attention, with many jurisdictions now recognizing it as a crime. According to this Wikipedia article on marital Rape it is increasingly criminalized across the world.
This debate is far from closed. It is a live issue in Nigerian jurisprudence, and as future lawyers, judges, and legislators, the baton will soon be in your hands to shape where the law goes next.
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