Sep 5, 2019

Rape In Nigeria: Should The Burden Of Proof Shift?


Nigeria is a large and populous country with a lot of beliefs and superstitions. These beliefs are largely fuelled and sustained through religion, societal views and a sense of morality. These factors play a role in the attitude Nigerians have towards certain issues, criminal issues especially.
These criminal issues elicit different responses from the different classes of individuals within the Nigerian space, and one of such criminal issues is rape; a crime that affects the victims both physically and psychologically as victims, who are largely female, are stigmatised and labelled with unsavoury names and are sometimes even accused of being at fault for their own rape and consequently victims have been known to commit suicide to thus escape the shame they face from society.

This stigmatisation is largely fuelled by the disproportionate and frankly impossible elements which the prosecution must prove to be granted a conviction against the accused. To this point, this article seeks to suggest whether this burden of proof should shift from the complainant on to the accused; due largely to the peculiar nature of the crime of rape compared to other crimes as well as the burden of reporting the crime and being at the forefront of proving that the elements of rape have been fulfilled so a conviction can be made. BURDEN OF PROOF  As with all crimes, the burden of proof in rape lies with the complainant/prosecution, who must show that the accused did indeed commit the crime being alleged and that he intended to commit the alleged act. It is not enough merely to say, that the accused committed the alleged act however, this must be proved beyond reasonable doubt that the accused indeed committed the alleged act. This even receives statutory backing in the highest law of the land, the Constitution of the Federal Republic of Nigeria1. The underlying principle behind the notion of this stringent burden lying in the prosecution, is the point that it is better that ten guilty men should escape than that one innocent man should suffer.2 In the case of The State v. Danjuma3, the Supreme Court stated; 

A cardinal principle of law is that the commission of a crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the prosecution… the burden never shifts and if on the whole of the evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays down on upon it…4  WHAT IS RAPE? According to the Oxford Advanced Learner’s Dictionary,5 rape is defined as “to force somebody to have sex with you when they do not want to by threatening them or using violence.” 

1 See section 36(5) 2 Okonkwo and Naish (2012). Criminal Law in Nigeria. 2nd ed. Ibadan: Spectrum Books Limited. p.93  3 [1997] 5 NWLR (pt. 506) 512 4 ibid 5 The 9th edition.

The Criminal Code defines rape as:

…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 impersonating her husband…6 As stated above, rape affects its victims both physically and psychologically and as seen from the above definitions, rape is a vile, violent and disturbing act which is rightly punishable under the law as a criminal act. One point that sticks out in the above definitions is the importance of Consent.  The requirement of consent in a rape trial is so essential that where it can be proved that consent was absent, a conviction of rape will most likely be given while the presence of consent will provide the accused with a strong defence and thus weaken the case of the complainant. Thus the lack of consent is a central factor towards establishing the offence of rape. To this effect, the accused must not only be shown to have committed the act (of rape), but that he did so with the intention of having sexual intercourse without the victim’s consent or that the accused must have been recklessly indifferent as to whether the victim was consenting or not.7 The victim is expected to show as well, in a situation where the consent was obtained fraudulently that she was induced and relied on the fraudulent information.

The requirement of consent however has probably been the most difficult thing to prove by the accuser in a rape trial. In D.P.P v. Morgan8, the House of Lords stated that where an accused believed that the woman was consenting, he should not be guilty of rape even though he had no reasonable grounds for his belief. The principle of the decision reached in this case is still very relevant in Nigeria, and it just goes to show the insensitive burden placed on the prosecution in proving the offence of rape. This will no doubt lead to injustice and it is perhaps no surprise, however unfortunate it may be, that Nigeria has only ever recorded 18 rape convictions in her history.

A case that exemplifies the injustice that may result in a rape trial is the case of Ogabi v. The Republic9. Here, the appellant did not deny having sexual intercourse with the victim but contended that he did so with her consent. He was convicted by the High Court and sentenced to a term of imprisonment. Upon appeal to the Supreme Court, the court held that the presence of injury on the private part of the victim was not conclusive proof of absence of consent to the sexual act and the failure of the prosecution to call material witnesses who approximate as closely as possible to what may be described as an eyewitness was prejudicial to the prosecution’s case. The appeal was thus allowed! The notion that women or victims are expected to fight back while being raped further contributes to the seemingly obtuse attitude people have towards consent in rape. It is not

6 Section 357. See also section 282, Penal Code Act; section 258, Criminal Law of Lagos State.  7 D.P.P. v. Morgan (1975) 2 All ER 347; R v. Olugboja 3 All ER at 433 8 Ibid  9 (1965) NMLR 364

uncommon to hear questions being asked about the dressing of the victim at the time of the rape, or why the victim (if a woman) would go over to a man’s house to sleep over, suggesting she was asking for it. Probably the most infuriating of all, is the stereotype that a woman really means yes when she says no. In other words, consent is given indirectly and thus the victims are essentially enablers of their own rape. Another important point that sticks out in trying to prove rape is CORROBORATION. It is established practice, that the evidence presented by a complainant in sexual offences must be corroborated10. In R v. Baskerville11, corroboration was defined as; 

evidence which implicates the accused, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.12 This essentially means that the victim’s story must be supported by some external evidence connecting the accused to the rape. However this is counterproductive as more often than not, rape occurs in a private setting, away from the full glare of the public. As a result, the victim would then need to rely on direct evidence such as her appearance, medical reports or examinations immediately the offence was committed, statement to police, etc. 

The Supreme Court in Edet Iko v. The State13, held that the fact that the complainant said accused inserted his penis into her vagina is not ipso facto sufficient proof of penetration in the absence of corroborative evidence like a medical report to support the evidence of penetration. In R v. Saidu, the victim was found sitting on the accused’s lap who was wiping her thigh with a cloth, which was identified as belonging to the accused. Upon examination, the cloth was found to contain human semen, which was also found on the thigh of the girl without blood. The doctor, who examined her could not say whether the rupture of the hymen as well as the condition of the outer parts of the girl’s vagina was recent. Accused was thus convicted of indecent assault instead of rape!  The above cited cases show the attitude that judges in Nigeria have towards corroborative evidence in rape trials. In one reported case14, the court blatantly disregarded medical evidence that showed laceration of the hymen, though not stating the cause, as well as the testimony of an eye witness who stated that he found the appellant on top of the complainant. Despite the requirement of corroboration in practice, while adducing evidence in a rape trial, the reported cases show that more often than not, the courts would ignore this corroborative evidences even in situations where it is clear that the evidence supports the fact that the accused did in fact commit the alleged act. 


Though the concept of a presumption of innocence during a criminal trial was conceived with the idea of preventing an innocent man from being wrongly convicted for a crime he didn’t commit, in the case of rape, especially in Nigeria, this has only served to allow “criminals” escape punishment. This even further allows such individuals to become repeated offenders as they escape liability

10 Ibeakanna v. Queen (1963) 2 SCNLR p.191 11 (1916-17) All ER 38 12 Ibid. at 34 per Lord Reading CJ. 13 (2001) 14 NWLR (Pt. 732) 221 at 245. See also Simon Okoyomon v. The State (1972) 1NMLR 292 14 Na’an Upahar & Or v. The State (2003) 6 NWLR 254-256

either due to a failure to report the rape, the incompetence of the investigative officers who are pit in charge of the case or even the court’s attitude towards the victims or the evidence adduced by the prosecution during the trial. To this effect it begs the question whether the burden of proof in a rape trial should shift from the complainant to the accused?   

From the above stated problems, (many of which could not be listed here by the author) faced by the complainant in trying to get a rape conviction against the accused, it would help if the burden shifted onto the shoulders of the accused.      

Firstly, shifting this burden would go a long way in allowing victims be more open towards reporting their cases. In the present dispensation, victims are well aware of the difficulties they face in even having their reports taken serious by a police force who more often than not ridicule them and blame them for enabling their own rape. Such individuals who are supposed to help gather up a case for the prosecution would, if the accused bears the burden of proof, probably take their jobs more serious and be more receptive towards listening to rape reports. This will also be further helped if the police force had more female presence, as the majority of rape victims are female, these officers will empathise with them and be willing to investigate their claims. 

Secondly, though newer criminal statutes such as the Violence Against Persons (Prohibition) Act 2015 and the Criminal Law of Lagos State 2011 are more progressive with regards to their provisions on rape and sexual offences, it is suggested that the statutes governing rape and other sexual offences be revised and enacted with proper regard towards the plight of victims in proving they were raped and reference towards international best practices. These would include a provision which shifts the burden of proof from showing that rape was committed, to showing that rape was not committed, thus granting the victim respite from having to go through a harrowing trial which would in the end not favour her. 

To end it all, it can be seen that the current prevalent system is “anti-rape” as it does not give a favourable climate to the victim who has gone through a lot leading up to the point of trial. It is a system that largely favours the accused, due in part to the fact that the burden of proof lies largely with the complainant who must prove beyond reasonable doubt that the accused did commit the alleged act. The suggestions outlined above, together with the criticism of the current system will go a long way to improving the entire criminal justice system towards rape as well as granting the victims proper reliefs.  

Gani Fawehinmi Students Chambers 
Faculty of Law
University of Lagos