“guilty of an offence called defilement. (2) A
person who commits an offence of defilement with a child aged eleven years or
less shall upon conviction be sentenced to imprisonment for life (3)A person
who commits an offence of defilement with a child between the age of twelve and
fifteen years is liable upon conviction to imprisonment for life (4)A person
who commits an offence of defilement with a child between the age of sixteen
and eighteen years old is liable upon conviction to imprisonment for life –
Section 7 (1-4) of the Sexual offences Bill (SOB) 2013
“(2) A person who commits the offence of defilement shall upon conviction be
sentenced to imprisonment for life”. Clause 6(2) Sexual Offences Bill 2015
“(1) No person, shall have sexual intercourse with a child. (2) A person who
contravenes the provision of Subsection (1) of this section commits an offence
of rape and is liable on conviction to imprisonment for life” – Section 31(1-2)
of the Child’s Rights Act (CRA) 2013
Since the passage of the Sexual Offences Bill
2015 a few weeks ago, there has been great agitation from several quarters
about the true import of the Bill. To many of the pundits and agitators, the
Bill is anathema because of its anticipated provision criminalising sexual
activity with a child aged eleven or less. In their opinion, such a provision
officially sanctions eleven years as the approved age for sexual activity by
children in Nigeria.
Unfortunately, this view seems not to be well
founded in the light of the remaining provisions of the Bill and also the
provisions of the Child Rights Act, which has been domesticated by majority of
the states in Nigeria. It is important to state that going by the initial draft
of the bill reproduced above, the senators never had any intention to reduce
the age of consent for sexual activity to 11 years.
From the provisions of the original 2013 draft
Bill, sexual activity with a child can be classified into three categories…
The Bill creates the offence of defilement as an
act which causes penetration with a child and defines penetration to mean
partial or complete insertion of the genital organs of a person into the
genital organs of another person (Section 50 SOB 2013, Clause 45 of intended
SOB 2015). It equally defines genital organ to include the whole part of a male
or female genital organs, and includes the anus and breasts for the purposes of
the Act (Section 50, Clause 45 of intended SOB 2015).
A child is defined as having the meaning assigned
to the term in the Infant Relief Act (Section 50, Clause 45 of intended SOB
2015). The Infant Relief Act 1874 by inference provides that an infant is a
person under the age of 21 years.
From the provisions of the original 2013 draft
Bill, sexual activity with a child can be classified into three categories,
viz; sexual activity with a child aged eleven or less (Section 7(2)); sexual
activity with a child aged twelve to fifteen years (Section 7(3)); and sexual
activity with a child between the ages of sixteen and eighteen years (Section
7(4).
It is no doubt the manner in which section 7 was
drafted that created confusion in the minds of impatient and maybe overtly
critical readers. One of the questions that would agitate the minds of a
thoughtful reader of that section is the rationale for breaking down defilement
of a child into three categories, if the same punishment attaches to the three
categories. Why not just state categorically that defilement of a child
attracts life imprisonment and then go ahead to define who a child is. But, as
could be expected, the final provisions contained in clause 6 of the 2015 Bill
corrects this inelegant draftsmanship and simply provides that “A person who
commits an offence of defilement shall upon conviction be sentenced to
imprisonment for life” (Clause 6(2) 2015 Bill).
It is also important to note that the Bill does
not make any provision for cases where both persons involved in the sexual
activity are children or are close to each other in age, the situation commonly
referred to as Romeo and Juliet clauses in the American jurisdiction.
Other provisions of the Bill directed towards
safeguarding the child include: criminalisation of attempted defilement
(Section 8 SOB 2013, Clause 7 of intended SOB 2015), criminalisation of
indecent acts with a child (Section 10 SOB 2013, Clause 9 of intended SOB
2015), criminalisation of the promotion of sexual offences with a child
(Section 11 SOB 2013, Clause 10 of intended SOB 2015), criminalisation of child
trafficking for sexual purposes (Section 12 SOB 2013, not included in the 2015
Bill), criminalisation of child sex tourism (Section 13 SOB 2013, Clause 11 of
intended SOB 2015), criminalisation of child prostitution (Section 14 SOB 2013,
Clause 12 of intended SOB 2015), criminalisation of child pornography (Section
15 SOB 2013, Clause 13 of intended SOB 2015 (but note that the definition
contained in Clause 13 is of pornography, though the headnote reads child
pornography), and criminalisation of incest and attempted incest by male
(Section 19 SOB 2013, Clause 17(1&2) of intended SOB 2015) and female
persons (Section 20 SOB 2013, Clause 18 of intended SOB 2015) with children.
The Bill also, unlike the Child’s Rights Act,
provides for a defence to the charge of defilement. Thus it is a defence to
show that the child deceived the accused into believing that she was above the
age of 18 years at the time the offence was committed and that the accused
reasonably believed the child to be above the age of 18 years (Section 7(5) SOB
2013, Clause 6(3) of intended SOB 2015). The defence will however not avail an
accused if he/she is within the prohibited degrees of blood affinity (Section
7(7) SOB 2013, Clause 6(5) of intended SOB 2015).
Thus examining the Bill holistically, it seems
that its provisions relating to children are well intentioned and are directed
towards protecting the child from exploitation. The controversial section 7 as
originally drafted does not purport to change the age of consent for sexual
activity to eleven years, as has been touted in various quarters.
Under the Child’s Rights Act, it is immaterial
that the offender believed the person to be of or above the age of 18 years or
that the sexual intercourse was with the consent of the child (section 31(3)
CRA 2003).
Another compelling provision for the interest of
children’s right is the possibility of declaring a child witness as a
vulnerable witness (Section 31(1)(b) SOB 2013, Clause 29(1)(b) of intended SOB
2015), and the protections that will follow such declaration (Section 31(4) SOB
2013, Clause 29(4) of intended SOB 2015). There is also a provision that
designates a person who is convicted of a sexual offence against a child as a
dangerous sex offender (Section 39(1)(c) SOB 2013, Clause 37(1)(c) of intended
SOB 2015), who is subject to supervision and whose particulars and samples may
be contained in the Dangerous Sex Offenders database (Section 36(3 and 4) SOB
2013, Clause 34(3 and 4) of intended SOB 2015).
It is also important to note that the Bill does
not make any provisions for the cases where both persons involved in the sexual
activity are both children or are close to each other in age, the situation
commonly referred to as Romeo and Juliet clauses in the American jurisdiction.
As such, a child who commits the offence of defilement on another child is also
liable to life imprisonment, a situation that is contrary to international and
national prescriptions on juvenile justice.
Thus examining the Bill holistically, it seems
that its provisions relating to children are well intentioned and are directed
towards protecting the child from exploitation. The controversial section 7 as
originally drafted does not purport to change the age of consent for sexual
activity to eleven years as has been touted in various quarters.
However, adopting the meaning given to an infant
in the Infant Relief Act 1874 of 21 years seems to run counter to the
intendment of the Bill. For example, it is a defence to the charge of
defilement that the child deceived the accused into believing that he or she
was over the age of 18 years at the time of the alleged offence and the accused
person reasonably believed that the child was over the age of 18 years.
(Section 7(5) SOB 2013, Clause 6(3) of intended SOB 2015). Also in relation to
incest with a child, the stipulated age is 18 years (Clause 17(1) of intended
SOB 2015). Thus it seems contradictory to adopt the meaning of infant as one
below 21 years.
Even though the furore about section 7 of the
Bill revolves around the contention that the section reduces the age of consent
to 11 years, and even though this is not so, one of the salient issues about
the Bill and every other such statutory rape law is the need to determine a
practicable and realistic age for consent.
Despite these few drafting inelegancies one must
duly acknowledge the good intentions of the sponsor of the bill to protect
children by criminalising what is referred to as statutory rape in other
jurisdiction. Even though the Child’s Rights Act had blazed the trail in
creating this offence of statutory rape, the distinguished senator must have
sought for a more binding law on the subject matter, as the Child’s Rights Act,
because of its unfortunate defect in passage, can only be regarded as an Act
applicable to the Federal Capital Territory.
Statutory rape is a term used to describe sexual
relations involving someone who is under an age specified by statute and who
cannot legally consent to having sex. The Child’s Rights Act calls it rape
while the Sexual Offences Bill calls it defilement. Some other countries simply
refer to it as sexual intercourse with a minor.
Statutory rape laws are based on the need to
protect young people who are deemed incapable of giving informed consent to sex
because of their lack of maturity and judgment. They are passed to protect the
child who is considered innocent and trusting from pedophiles.
Statutory rape laws define the age of consent and
any sexual activity with a child below the age of consent are criminalised.
There is no general age considered as the age of consent, but each state
decides for itself what the suitable age is. For example, in the United States,
about 30 states fix 16 years as the age of consent, about eight states have 17
years as the age of consent and 12 states have 18 as the age of consent. Japan
has 13 years, Austria, Italy and Portugal have 14 and Denmark, France and
Sweden fix theirs at 15 years.
One then wonders whether setting the age of
consent at 18 or 21 reflects the common consciousness and experiences of the
people… It may be necessary to conduct relevant studies in order to determine
the right age of consent applicable to the Nigerian situation.
Even though the furore about section 7 of the
Bill revolves around the contention that the section reduces the age of consent
to 11 years, and even though this is not so, one of the salient issues about
the Bill and every other such statutory rape laws is the need to determine a
practicable and realistic age for consent. The Bill as it currently stands
prescribes 18 years as the age of consent and at the same time makes 21 years
also applicable as the age of consent by adopting the definition of a child
contained in the Infants Relief Act 1874.
However, whether it is 18 years or 21 years, it
is important to ask the relevant question, whether such an age is practical and
enforceable in the light of realities in Nigeria. It is common knowledge, which
is also corroborated by specific studies, that most secondary school students
in Nigeria who are under the age of 16 years are actually sexually active and
the age of initiation of sexual activity in Nigeria is relatively low.
One then wonders, whether setting the age of
consent at 18 or 21 reflects the common consciousness and experiences of the
people or is an attempt to create an imaginary utopic world through the aegis
of the law. It may be necessary to conduct relevant studies in order to
determine the right age of consent applicable to the Nigerian situation.
In the final analysis, the Bill is not the
monster people have made it out to be, especially as it relates to protection
of children. There might be other provisions of the Bill that raise the
perennial jurisprudential question of how far law should be used to enforce
morality and the limit to which the state can limit personal liberty through
the law, but that is a debate for another forum.
If assented to, the Act will supersede the
provisions of the Child’s Rights Act on statutory rape (Schedule, Transitional
Provisions, 1(2) of intended SOB 2015) and will impliedly repeal the
inconsistent provision of the Child’s Rights Act on the defence available to a
person accused of defilement. Ultimately, its provisions on child protection
are a welcome attempt to provide protection for children from defilement and
early sexual exploitation and manipulation.
Nonso Robert Attoh is a law lecturer in
the Faculty of Law, University of Nigeria, Nsukka
