Women and Justice: Keywords

Legislation

Nigeria Penal Code Act (1960)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The Penal Code applies to the northern states of Nigeria. Section 55(1)(d), subject to customs that have been recognized as lawful, allows a husband to “correct[] his wife” as long as it does not amount to “grievous hurt.” Section 55(2) goes on to state that the correction must be reasonable in kind or degree with regards to the age, physical, and mental conditions of the person being corrected. Grievous hurt is defined in section 241 as “(a) emasculation; (b) permanent deprivation of the sight of an eye, of the hearing of an ear or the power of speech; (c) deprivation of any member or joint; (d) destruction or permanent impairing of the powers of any member or joint; (e) permanent disfiguration of the head or face; (f) fracture or dislocation of a bone or tooth; (g) any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.” The law concerning abortion is found in sections 232. Referenced in the law as the causing of a miscarriage, abortion is only legal to save the life of the mother. Any person, including the mother, can be guilty of the offense and will be punished with up to 14 years in prison, a fine, or both. Sections 233-235 discuss the causing of a miscarriage intentionally or unintentionally through acts against the mother. These offenses also carry a penalty of imprisonment, fines, or both. Section 282 discusses rape and specifies that sexual intercourse by a man with his wife is not rape if she has gone through puberty.



Violence Against Persons (Prohibition) Act (2015)

Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape, Statutory rape or defilement

As stated in the accompanying Explanatory Memorandum, the Violence Against Persons (Prohibition) Act aims to “prohibit[] all forms of violence against persons in private and public life, and provide[] maximum protection and effective remedies for victims and punishment of offenders.” The Act provides general protections against offenses including infliction of physical injury, coercion, offensive conduct, willfully placing a person in fear of physical injury, willfully making false statements against another person, damage to property with intent to cause distress, and deprivation of personal liberty. The Act also provides protections against offenses that affect women disproportionately, including a prohibition of female genital mutilation; forceful ejection from home; forced financial dependence or economic abuse; forced isolation; emotional, verbal and psychological abuse; harmful widowhood practices; and spousal battery, among others. Notably, the Act defines the offense of rape in Section 1(1) without an exception for marital rape, which had not traditionally been recognized as an offense (note that the Penal Code Act of 1960 does include an exception for marital rape). The Act provides a procedure for injured parties to apply for a protection order and empowers the High Court of the Federal Capital Territory with jurisdiction to hear and grant applications brought under the Act. As stated in Section 47, the Act is a product of federal legislation enacted in regard to criminal law, a residual matter over which the states have exclusive legislative power pursuant to the Nigerian Constitution. Thus, the VAPP Act applies only to the Federal Capital Territory and is not binding law in a state unless adopted by that state.



Anti-Trafficking in Persons Act (2011)

Forced and early marriage, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

This Act criminalizes slavery in all forms and provides protection and support for victims of trafficking. As defined by the Act, "'exploitation' includes, at the minimum, induced prostitution and other forms of sexual exploitation, forced marriage, forced or bonded services, or practices similar to slavery, servitude or the removal of human organs." The definition of trafficking is comprehensive and defined in Part 2, Section 5(3) of the Act. The Act proscribes further that victims “shall not be liable for crimes committed in connection” to their own trafficking and that “the past sexual behavior of a victim of trafficking is irrelevant and inadmissible for purpose of proving that the victim was engaged in other sexual behavior or to prove sexual predisposition of the victim.” The Act provides an aggravated trafficking designation in cases where the trafficked person dies, becomes disabled physically or mentally, suffers mutilation, contracts a sexually transmitted disease including but not limited to HIV or AIDS, or develops a chronic health condition. The Act also mandates the temporary material support and care for any child victim; provision of accommodation, counseling, and rehabilitation services for victims; and mandates attempted reintegration of adult victims into their families and communities.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Articles 189 - 192: Offenses Against Sexual Liberty and Honor (2019)

Sexual violence and rape

Art. 189 provides for criminal penalties of imprisonment for not more than 10 years or a monetary penalty for any person who uses threats, force or psychological pressure on another person or makes that other person incapable of resistance in order to compel him or her to tolerate a sexual act similar to intercourse or any other sexual act.  If the offender acts with cruelty, and if the offender used an offensive weapon or other dangerous object, the penalty is imprisonment for not less than three years. Art. 190 provides that a person can be sentenced to between 1 and 10 years in custody or a fine for using violence, threats, or psychological pressure to force a female to engage in a sexual act, or for making her incapable of resisting.  Art. 191 provides for criminal penalties of imprisonment for not more than 10 years or a monetary penalty for any person who, in the knowledge that another person is incapable of judgement or resistance, has sexual intercourse with, or commits an act similar to sexual intercourse or any other sexual act on, that person. Art. 192 provides for criminal penalties of imprisonment for not more than three years or a monetary penalty for any person who, by abusing a dependent relationship with a person in institutional care, an inmate of an institution, a prisoner, a detainee or a person on remand, induces the dependent person to commit or submit to a sexual act. Art. 193 provides for criminal penalties of imprisonment for not more than three years or a monetary penalty for any person who induces another to commit or submit to a sexual act by exploiting a position of need or a dependent relationship based on employment or another dependent relationship. Unofficial English translation available here.



Domestic Case Law

State v. Gudyanga (2015)

Domestic and intimate partner violence

This was a review of a sentence imposed by a trial magistrate at the request of the regional magistrate. In the opinion of the regional magistrate, the sentence imposed by the trial magistrate was too harsh and a community service sentence would have been just in the case. The accused was charged with physical abuse as defined under the DVA. The 20-year-old accused assaulted the complainant, his18-year-old wife, over a denial of conjugal rights. He was sentenced to two months’ imprisonment with a further two months suspended. The issue to be determined on review was whether the trial magistrate, by imposing a custodial sentence on a repeat violator of the DVA, erred in the exercise of discretion. The court found no misdirection on the part of the magistrate, holding that a custodial sentence is not required because the purpose of the DVA was to bring families closer together. Rather, the court explained that judges should apply a multi-factor sentencing analysis that includes, among other factors, considering both the DVA’s purpose to bring families together and whether the accused was a repeat offender. The DVA makes repeat offenders liable for imprisonment not exceeding five years. Here, the accused was a repeat offender, and therefore, liable for a custodial sentence at the discretion of the trial magistrate.



Kalenga v. The People Supreme Court for Zambia (2012)

Sexual violence and rape

Kalenga, the Defendant, told his 70 year-old grandmother, the Victim, that he had collected some firewood in the bush and offered to give her some. When she followed him into the bush, she found that no firewood had been collected, and instead, Kalenga took off his clothes and had intercourse with her without her consent. The Victim returned home and reported the crime to the head of the village and then to the police. While in police custody, he denied the charge, but admitted to having gone into the bush to collect firewood. At trial the Defendant did not testify. The Trial Magistrate found the Victim’s story to be corroborated by the fact that no firewood had been collected and found no reason why the Victim would fabricate such a story involving her grandson. As this evidence went unchallenged by Kalenga, the Trial Magistrate convicted him. The Trial Magistrate committed Kalenga for sentencing to the High Court, which sentenced him to 16 years imprisonment with hard labor. Kalenga appealed to the Supreme Court on the grounds that there was no finding of corroborative evidence. The Supreme Court agreed with the trial court that his admission to escorting the Victim into the bush, the lack of motive of the Victim to lie, and the unlikelihood of mistaken identity constituted “something more” to corroborate the Victim’s testimony. The Supreme Court further found the age of the Victim to be an aggravating circumstance and increased his sentence from 16 years to 20 years.



Hara v. The People Supreme Court for Zambia (2014)

Sexual violence and rape, Statutory rape or defilement

The Defendant, Hara, broke into the house of a twelve-year-old girl, forced her down and raped her. He pleaded guilty to defilement, a crime with the sentence of fifteen years to life imprisonment, and was sentenced to thirty years imprisonment with hard labor. Hara appealed the sentence on the grounds that (1) thirty years was too severe absent any aggravating circumstances (i.e. the victim did not sustain any physical injuries, become infected with a sexually transmitted disease or become pregnant) and (2) the lower court did not take into account mitigating circumstances (i.e. the defendant was a first time offender who readily plead guilty). Reasoning that “young girls are no longer safe even in their homes”, the Supreme Court rejected the Hara’s arguments that the absence of factors, such as physical injuries and pregnancy, should reduce his sentence. The Supreme Court further held that the lower court properly considered the Hara’s status as a first time offender, and therefore, the Supreme Court upheld his thirty-year sentence.