Busola Dakolo Vs Pastor Biodun Fatoyinbo: Will Busola win this case? See what the law says about Rape
Timi Dakolo’s wife, Busola Dakolo had made some heavy allegations against Coza pastor, Biodun Fatoyinbo.
The seasoned photographer and mother of three in an explosive interview revealed how the respected Abuja pastor, raped her on two occasions as a teenager.
The pastor had also refuted all allegations leveled against him and threatened to sue.
Well, when he does, would Busola Dakolo have a chance of winning, when we know women in Nigeria face many challenges and discrimination under some extant laws.
This discrimination is endemic and was also highly prevalent in African countries in vast contrast to the developed Western world, where women are highly revered and regarded.
Unfortunately, in some rural areas in Nigeria, women and children are still regarded and treated as chattel or property.
Thus, women are said to be among the vulnerable groups subjected to discrimination by the Nigerian Law.
Some of these laws that are not favourable to women include the aspects of rape, Indecent Assault, Domestic Violence, Customary law practices,Will and Property Rights, Marriage and Divorce amongst others.
Rape against women is a major ill plaguing the Nigerian society and one of the least reported crimes in Nigeria. This is due to the societal stigma attached to it. Adding to that, Nigerian laws expressly provided that there cannot be a case of rape in marriage.
Whilst in the real sense of the word, there can be cases of rape in marriage even if the law does not recognise it as an offence.
What is rape? Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person’s consent.
The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent.
Lack of consent is a key factor in rape. Consent here is affirmative; informed approval, indicating a freely given agreement to sexual activity. It does not necessarily have to be expressed verbally and may be implied from actions, but the absence of objection does not necessarily constitute consent.
Lack of consent may result from either forcible compulsion by the perpetrator or an inability to consent on the part of the victim. Where consent is obtained by fraud, force, threat, intimidation, deceit or impersonation, the act will still be regarded as rape.
Where a wife does not consent to the sexual intercourse, then if the husband “forcefully” has sex with her, it should be treated as rape once well proven that she was forced. This is because it constitutes both physical and mental abuse of the wife’s person.
Speaking to Allure Vanguard on the subject, Dr. (Mrs.) Adesola Falaiye, a practising Lawyer of 14 years said ‘Section 258 Criminal Laws of Lagos State provides that rape is when a man has sexual intercourse with a woman or girl without her consent, or with incorrectly obtained consent.
Consent can be incorrectly obtained where it is obtained: by force, impersonation threat or intimidation of any kind by means of false and fraudulent representation as to the nature of the act.’
“Like the Penal Code, the Criminal Laws of Lagos explicitly states that sexual intercourse by a man with his wife cannot be unlawful, and therefore a man cannot rape his wife.
Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife.
The implication of all these provisions is that marital rape is not an offence in Nigeria, therefore a husband cannot rape his wife.
The marriage contract gives an assumption of implied general consent to sexual intercourse upon entering the marriage.
This implied consent is however revocable either by an order of a court or separation agreement or divorce.”
Sadly, when this same act is perpetrate against an unmarried woman, it is treated as a very serious offence punishable by life imprisonment under the Criminal Code and Penal code, but the major hindrance to the case is the rules of evidence which are stacked up against the victims in courts.
“In the case of Upahar vs The State (2003) Vol 6 NWLR pt 816 the court held that to establish the offence of rape, the prosecution must prove:
(1)That the accused had sexual intercourse with the prosecutrix.
(2) The sexual intercourse was done in circumstances under the provision of S.282
(1) of the Penal Code.
(3)The prosecutrix wasn’t the wife of the accused or if she was the wife, had not attained the age of puberty.
(4)The accused had the mens rea (criminal intent) to have sexual intercourse with the prosecutrix without her consent, or he was reckless and careless regarding her consent.
(5)She should be able to prove that there was penetration,” says Mrs. Falaiye.
How and where would Busola get the evidence to prove that there was forceful penetration indeed!
This case is such a dicey one..
We will keep you updated.