Rape: Can Consent be Withdrawn at Anytime?

Can Consent Be Withdrawn at Anytime?

Can Consent Be Withdrawn at Anytime?

Abstract:

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Most recently Victimization of accused has been a growing concern in Rape Cases, this makes the Work of the Judge very Difficult to determine when the offence of Rape is committed. Coupled with other factors is the issue of Withdrawal of Consent During Sexual intercourse, this article would answer the question Can Consent be Withdrawn at anytime. The purpose of this article is to Educate the reader of the boundaries of their rights to give and withdraw consent during sexual intercourse.

INTRODUCTION

The offence of rape is a serious crime against humanity, as it violates a person’s fundamental right of personal dignity and freedom[i]. Rape is the most egregious form of sexual assaults as it leaves it victim both in psychological and physiological pain.[ii] It is a particular kind of human violence which carries powerful meanings in any culture, ancient and modern. The act of rape is not new.[3] the offence of Rape occcures when a when a man get unlawful canal knowledge of a woman or Girl without her Consent.[4]

The Punishment for Rape is life Imprisonment[5]. Consent is the most important elements in proving the offence of Rape failure of which extinguishes the charge.[5] This article would answer the question of whether withdrawal of consent Would could  still amount to Rape.

 4.2 CONSENT

One essential ingredient in proving the proving the offence of rape is consent. This goes to show whether there was a mutual understanding between the parties before the sexual intercourse.  Per Peter Odili JSC in.   Ahmed v The Nigerian Army[1]” The offence of rape is the unlawful carnal knowledge of a woman or girl, without her consent or with her consent, if the consent is obtained by force or by means of threats 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 in the case of a married woman, by personating her husband. It may be stated differently by saying that rape, means a forcible sexual intercourse with a girl or woman without her giving her consent to it”[2]

It is trite that in Nigerian the only exception to consent is sexual intercourse between married people. [3]Consent can be express or implead.[4] Express Consent is achieved where the parties unequivocally accept in the involvement of the sexual intercourse. [5] Consent can also be implied from the Fact of the case and persons conduct.  However some writers have argued that consent in rape must be express between the parties.[6]. This researcher argues that consent to sexual intercourse must not always be express consent should also be implied by conduct; the activity of sex is not mechanically motivated but biologically driven. So the rule of express consent at all-time makes the activity of Sex to be more formal , like signing a formal contract in conveyance of property. It is my opinion that the conduct of the parties should always be taken into account and consent deduced from such conduct. The court in applying implied consent should take the flowing factors into consideration. The relationship of the parties, their previous dealings, previous au trances, act of resistance, act of support, and all other circumstances  which are connected and important to the fact in Issue.

4.2.1 WITHDRAWAL OF CONSENT.

Since sex drives are not like mechanical part in a moving train but are driven my biological impulses, should withdrawal of Consent amount to no Consent. Under common law the Withdrawal of Consent at any point after the sexual intercourse had begun is still consent. [7] In People v. Vela the Supreme Court in California held that a woman who had given consent at the beginning of the sexual intercourse could not withdraw it Midway and at such did not constitute the offence of rape.[8]

However in In People v. John Z. The court held that a woman who had given consent could  withdraw it at any time and at such the accused was held liable for the offence of rape having continued when consent was withdrawn.[9] In State v.  Baby,[10] the Judge expanded the concept of consent to not only at the inception of the sexual intercourse but also during sexual intercourse.

There are few or no Nigerian Cases where the Court has been called upon to interpret the issue of Withdrawal of Consent in sexual intercourse. It is settled in Nigeria jurisprudence that when consent is obtained before sexual intercourse the charge for the offence of rape would fail.[11]

It is the opinion of the researcher that Withdrawal of Consent should not amount to rape, save for some circumstances. That after the end of each turn of ejaculation a fresh consent should be sought and obtained failure of which would amount to rape. Or where the sexual intercourse is done in a way or manner not contemplated by the parties which is likely to cause harm or physical injury Withdrawal at that point should be valid. For instance choking or smothering, penetration in an unauthorized organ. Furthermore where a person’s condom gets damaged during Sexual intercourse Withdrawal of consent should be valid.

4.2.3CONSENT BY MINORS

A minor no matter no how express is incapable of giving consent. Consent given by a minor amount to no consent and the Accused can be convicted for rape.[12]In AHMED v. STATE[13]The victim in this appeal was a minor whose consent to sexual intercourse is immaterial even if she had given one.The court found that from the  totality of the evidence at the Lower Court, the victim did not consent to the sexual intercourse.

4.2.4MIDWAY CONSENT

Another prevailing issue in rape is the issue of Midway consent, what happens when consent was not first obtained but the victim later gives consent Midway and during the sexual intercourse he or she begins to exhibit conducts and expressly tells the Accused to continue would such conduct amount to rape. Sections 75 of the English Sexual offences Act, 2003 Provides that where Consent was not sought and obtained at first consent gotten Midway would amount to no Consent. I doubt if the Nigerian court would hold same if presented with such issue. It is trite that a person cannot approbate and reprobate.[14] The acceptance Midway is not only prove of consent but is a form of rectification of a conduct which would have been illegal. But in holding this all factors in connections to the circumstances of the case must also be out into consideration.

Can Consent Be Withdrawn at Anytim?

[i] M O A Ashiru ,O A Orifowomo, ‘Law of Rape in Nigeria and England: Need to Re-Invent in the Twenty-First Century’ (2015) vol28 Journal of Law, Policy and Globalization  28.

[ii] Justice Maxwell, ‘Redefining The Offence Of Rape In Nigeria’(2019)<https://www.academia.edu/41293454/>Accessed 25August 2023

[iii]I A  Chiazor,  M I Ozoya, M Udume,M E Egharevba, ‘Taming the Rape Scourge in Nigeria: Issues and Actions (2020) <core.ac.uk/display-9555039?-Covenant-university-repository,77654.> Accessed 16 May 2023.

BABATUNDE v. STATE (2018) LPELR-CA/EK/23C/2017

[1](2006) CA/A/88C/(2010) LPELR

[2]Ogunbayo v State (2007) ALL FWLR (Pt. 365)

[3]Upahar&Anor v. State (2002) CA/J/177C/99 LPELR.

[4]Air France v Okwudiafor (2010) CA/PH/81M/2006 ELPELR

[5]Lucky v State (2014) SC.842/(2016) LPELR

[6] E Ross, R Rapp, ‘Sex and Society: A Research Note from Social History and Anthropology1 (1981) 23(1) Comparative studies in society and history 51-72.

[7] R Matthew, Lyon, ‘No Means No?: Withdrawal of Consent During Intercourse and the Continuing Evolution of the Definition of Rape’ (2004)38 Journal of Criminal Law and Criminology’ 44.

[8] Withdrawing consent during intercourse <https://supreme.findlaw.com/legal-commentary/withdrawing-consent-during-intercourse.html>

[9] Ibid

[10]404 Md. 220, 946 A.2d 463 (2008).

[11]Udjor  v State (2018) CA/B/404C/(2014) LPELR

[12] Ahmed v State (2015) CA/S/107C/(2014) LPELR

[13] (2015) CA/S/107C/(2014) LPELR

[14]Abeke V. Odunsi&Anor. (2013) C.35/2003 LPELRS

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