SPOUSES’ RIGHT TO “SAY NO” IN MATRIMONY: LEGAL ISSUES AND CHALLENGES

Abstract

Spousal rape is one legal concept that is shrouded in controversy.1 While gender bias associated with rape simpliciter in Nigerian criminal jurisprudence, has adequately been addressed in the Violence Against Persons (Prohibition) [VAPP] Act,2 and few legal texts, that cannot be said of spousal rape. spousal rape has been outlawed in some jurisdictions and that has necessitated the cry for it being outlawed in Nigeria. But most of these agitations to criminalize spousal rape in Nigeria, are either misconceived or shrouded in gender perspective. Laws are generally predicated on the principles of; equity, equality and fairness, however most scholars advocating for criminalization of spousal rape in Nigeria tend to shut their eyes to this reality. Most scholars also appear not to appreciate the meaning of spouse(s), persons that should accorded the status of spouse or equitable parameters that must be used in that regard in their clamour to have spousal rape criminalized in Nigeria. Rape is crime against humanity and as such, should not be clothed with gender perspective. At present, there is no legislation that has criminalized spousal rape in Nigeria and this situation is bad. The VAPP Act has already laid commendable template of what constitutes the offence of rape/offenders thereof and same should be extended to spouses irrespective of model of marriage contracted. These lacunas necessitated this work. In appraising these lacunas, the work adopted the doctrinal method of research, which involves analyzing of primary and secondary data. The primary data sources were local/foreign statutes, conventions, policy documents and case laws. The VAPP Act is the sole legislation that has used gender neutrals in criminalizing rape (even though it failed to criminalize spousal rape). The work seeks to bridge the gender perspective’s gap inherent in the VAPP Act and other relevant laws amidst the call to criminalize spousal rape in Nigeria.