There is a debate currently going on on social media about what constitutes rape. It spanned off from a lady that posted that her partner penetrated her while she was sleeping and she didn’t give express consent for the partner to have sex with her and she felt violated and raped even though she has been sexually active with the guy.
Some other lady in support of her added that “Inserting your penis into your partner (even if you both are married) while she is asleep or unconscious is rape” but some other ladies in disagreement stated that as much as she has been having sex with the guy and the guy is her partner, they can have sex any time even while she’s asleep or unconscious or didn’t give express approval for the act.
Well, the issue of rape can be blurry sometimes, especially when it involves partners who have been sexually active with each other but no matter how dicey you may argue it to be it is always advisable for one to err on the side of caution, hence what you need to guild you is what the statute says as to what constitutes rape and what does not constitute rape. In all these, the keyword as to what constitutes rape is “consent”. Does the partner consent to you having sex with him or her at that point in time? It does not matter if you both have been sexually active or married to each out; does he or she approve or expressly consent to the sex at that point; if the answer is no, then it is rape.
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Consent here has to be expressed, it has to be unequivocal and succinct. It must not be implied or imposed, you must be sure that the partner approves of you having sex with him or her at that point.
Rape therefore means that there is no “express consent” for the sexual act. Even if he or she allows or permits it; that does not translate to express consent. It is still rape
Numerous school of thought has given the concept of rape a wider definition and it has been broadly defined to be an unlawful sexual activity, most often involving sexual intercourse against the will of the victim through force or the threat of force or with an individual who is incapable of giving legal consent because of minor status, mental illness, mental deficiency, intoxication, unconsciousness or deception. Some other schools of thought have even taken the meaning of rape to another whole new level. Rape has been subsumed under that of sexual assault. Rape was previously considered to be caused by unbridled sexual desire, but it is now understood as a pathological assertion of power over a powerless victim.
Definitions of rape include the word, “unconscious”, this means that when a person is sleeping or unconscious or intoxicated, he or she is in a state where express and unequivocal consent can be given and you cannot say to have obtained consent from a person in such a state, therefore having a carnal knowledge with such a person constitutes rape; it doesn’t matter if you both have been having sex before then.
It’s so important for you to obtain verbal consent and not just non-verbal consent. Ridiculous as it may sound, the verbal consent must be “let us have sex and he or she answers”yes ” or”okay ” in clear terms to the demand for sex. It’s tricky that she or he removing their clothes does not translate to giving consent for the sex. To be on the side of caution, the consent must be expressed, oral and vocal.
Mind you, consent can be withdrawn at any time even at the point of the sex and once it is withdrawn you are expected to disembark immediately or else from the moment it is withdrawn and you are still at it, it becomes rape. This means that during the cause of the act and you hear the word “stop”, you are to stop immediately or else from there henceforth it becomes rape.
Rape is a serious crime and attracts serious punishment in almost all jurisdictions around the world. In Nigeria, the punishment for rape is life imprisonment while the punishment for attempted rape is fourteen years jail term as provided in section 358/359 of the criminal code act.