Busola Dakolo: Beyond Criminal & Civil Actions for Rape and Other Sexual Offences – Elvis E. Asia

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Introduction

On Friday 28 June, 2019, Mrs. Busola Dakolo granted an interview[1] accusing Mr. Biodun Fatoyinbo of rape which happened about two decades ago[2]. Mr. Fatoyinbo is the Senior Pastor of the Commonwealth of Zion Church. Many commentators both off and online have queried the authenticity of story and wondered why she is revealing it now after such a long time. They pointed to the fact that she did not show that she struggled during the alleged rape and that she could not have been raped repeatedly on different days. Some even challenged the reference to the drink, ‘Krest’ which she alleged the Pastor gave her after the act. Mrs. Dakolo’s statement that the first rape occurred in her family house seemed to have drawn the loudest criticism. People simply doubt that she could have been raped in her family house particularly when she said her elder sister was sleeping in the house. Still, others berated her for bringing shame to herself and her family and that the story was calculated to destroy the Lord’s anointed. Some even suggested that it was not possible to rape her the way she claimed if she was a virgin.

Whilst it is okay to doubt whether or not Busola can prove her allegation given that the event occurred more than a decade ago, criticisms and questions such as the ones above which are targeted at putting sexual assault victims to shame reveal a trend that encourages crude sexual behavior in Nigeria. There is an implicit culture in Nigeria which prevents women from speaking out against rape and other sexual offences. If this culture is apparent today, one can only imagine what it was 20 years ago.

Of course, this is not to say that Busola’s story is established or that the Pastor is not guilty. The law is clear that that conclusion cannot be made unless in a trial by a competent court[3]. However, a decent society should show revulsion against rape allegations and at the very least, demand investigation. Demanding investigation protects both the accused and the accuser and serves the ends of a civilized society.

Cultural hurdles to criminal prosecution for rape and other sexual offences in Nigeria

Whether we realize it or not, we have a culture that shames rape victims, push them into depression and for minors, sentences them into a lifelong social and sexual dysfunction. It is absolutely nauseating that in the 21st century, our society does not understand the extent of damage rape and other sexual offences have inflicted on millions of women and children out there. This insidious culture unconsciously defines and controls our institutional response to the problem. In the past (still largely the case), parents would not support rape prosecution on behalf of their daughters because they believed it may affect their chances of finding a husband or that it would bring shame to the family. In extreme cases, parents would beat up the victims for encouraging the rape by their dressing or appearance. With this prevailing belief, victims who are often children, vulnerable teenagers and adults would have no choice but to live with their misery alone. The effect is that most cases do not even get to the point of investigation.

In few reported incidents, you would have to contend with an unmotivated and biased police force. There is a popular joke by the comedian, Okay Bakassi[4] about a lady who went to the police station to report a case of rape. The questions that she was asked by the police suggested an innate bias against the story. This may be a mere joke, but it is our everyday reality. When rape is reported, the police and society often ask mundane questions like what the complainant was wearing at the time, whether she went drinking with the man or visited his house, whether she screamed or enjoyed the action and sometimes ridiculously whether she was a virgin. With this kind of unconscious bias, you do not expect the police to do any serious investigation which is the foundation for proving the offence.

There is also the issue of corruption in the police force. You may be asked to ‘mobilise’ them before investigation and when the suspect is arrested, their only interest may just be the ‘egunje’ for bail. In reality, most cases that go to court are cases influenced by wealthy and influential parents/relatives and in circumstances that may not be rape. This is coupled with the fact that the police are ill- equipped to prosecute offences. You need to visit the Magistrate courts to appreciate the magnitude of the joke we call criminal prosecution by the police. Their performance in court is a theatre of the absurd. You cannot help but weep when you see how the police handles investigation and prosecution of offences. A lot of cases are struck out for want of prosecution and many innocent people languish in jail under remand proceedings. Can you really blame them? It is only a society with no modicum of tolerance for serious offences like sexual offences that can prioritize prosecution of sexual offenders and shape institutions accordingly.

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Standard of proof in criminal proceedings

Even when the hurdle of society inertia against rape allegations is crossed, there is the difficulty in proving rape and other sexual offences in criminal proceedings. Rape and other sexual offenses are crimes under Nigerian laws[5]. Constitutionally, an accused person is innocent until proven guilty. One of the ingredients that must be established in a criminal trial for such an offence is that there was penetration without consent[6]. How do you prove penetration without consent? It is usually the accuser’s word against the accused. Nigerian case law on the point shows a very high bar in establishing penetration without consent.  In cases where there has been conviction, medical reports showing penetration was fundamental[7].  This is because the evidence of the victim must be corroborated[8].

The strict standard of proof is consistent with the unwritten code in all criminal proceedings that it is better for nine guilty persons to go scot-free than for one innocent person to suffer[9]. This standard is predicated on the desirable need to prevent or reduce cases where innocent people are convicted. As much as the society must rid itself of sexual perverts and make it inconvenient for them to act on their wicked impulse, it is also recognized that people can be victims of circumstance. This is particularly important in sexual offence allegations because there are many cases where people who had consensual sex turned around to call it rape perhaps because the relationship turned sour or because their influential parents wanted to deal with the audacity of the poor guy to look at their daughters or for some other reasons.

Accordingly, rape must be proved beyond reasonable doubt[10].  The challenge however is that meeting this standard is difficult in a society where rape victims are not encouraged to file complaints immediately. By the time the victim is able to find the courage to report cases of rape after many years as it is in the Busola case, the evidence, if any, would have been lost. The same society that made it inconvenient to report rape at the material time would rip the victims’ story to shreds under the guise of proof beyond reasonable doubt!

There is a jurisprudential context in which the standard of proof should be considered. The standard presupposes that the state has the requisite machinery not only to investigate crimes but also to prosecute. In a society where investigative capacity is near zero and where the prosecutorial machinery is unconsciously skewed to fail in favour of the crude man, one cannot help but call for a contextual application of the standard. Proof beyond reasonable doubt must therefore be viewed by judges in the lens of a reasonable man in Nigeria; after all, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt[11]. This postulation should be the case where the victims are minors and where the accused are people with authority over the victims.

Social media allegations and proof beyond reasonable doubt

Many people criticized Busola’s resort to social media because of the status of the accused. They argue that that was tantamount to convicting the accused before he is even heard particularly when her story does not exactly add up. I do not share this sentiment. There is no law which prevents anyone from telling his/her story on social media. Whilst it is conceded that the pastor’s image has been battered before trial, there are existing legal remedies for people who believe they have been falsely accused. The common law tort of defamation remains a major safeguard against falsehood, irrespective of whether the falsehood was said on social media or other platforms[12].

The public interest in protecting women and children and even men from rapists supersedes any individual right. Social media is a community which the society has migrated to. It is similar to the village square in the society that has gone extinct. No one would argue that one cannot cry in the village market square. The message is that the crude man must be aware that social media does not play within the strictures of culture. Social media is the definition of freedom from patriarchal norms which have held women bound in Nigeria.

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Civil remedies for sexual assault

In our discourse on sexual offences, it is hardly mentioned that victims can institute civil actions to claim damages against perpetrators. It is therefore not surprising that in the course of writing this article, no clear case on sexual assault was found, at least not from recent reports. It must however be mentioned that the National Industrial Court has set encouraging precedent for victims of sexual abuse in the workplace[13]. Though no amount of money can compensate and provide restitution for the incalculable harm sexual assault victims suffer, damages can assist the victims, deter offenders and re-engineer a culture of societal disdain for sexual assault.  The fact that offenders can be made to pay damages may go a long way in putting closure and healing victims of sexual abuse.

There is no doubt that our patriarchal culture which tacitly endorses sexual assault would also affect the institution of civil actions against perpetrators because the affected persons would still have to tell their story under public glare. However, civil action is much easier to establish because the standard of proof is minimal compared to criminal prosecution[14]. The claimant has more control over the way the case is conducted because he/she retains a lawyer who has a duty to represent her faithfully unlike the unmotivated police in criminal prosecution. There is also the possibility that offenders may want to avoid publicity that goes with a court trial with an offer to settle.

The civil actions that can be instituted include assault & battery, negligence and breach of fiduciary duty. Assault and battery occurs where the sexual offender either causes a person to have a reasonable apprehension of imminent harm or intentionally causes harm through any form of physical contact[15]. This will be the case in rape, attempted rape, child sexual molestation/abuse, incest and all forms of inappropriate sexual contact. There is no need for proof of actual injury to establish the tort[16].

Where trust relationships exist between the perpetrator and the victim, a tortious action for breach of fiduciary duty may be instituted against the offender. This will be the case in relationships between a pastor and member, doctor and patient, parent and child, lecturer/teacher and student, etc. The interesting thing about this tort is that institutions and individuals other than the offender may be held liable for breach of fiduciary duty. This is particularly important in Nigeria where many schools and their proprietors fail to protect children from sexual assault.

Closely related to fiduciary duty is negligence and the principle of vicarious liability. Individuals and institutions may be held liable in negligence where damage occurs due to their failure of duty of care. For example a school or child care institution can be held liable for inadequate vetting and monitoring of staff working with children. Employers can also be held vicariously liable where their conduct condones sexual misbehavior by staff.

Challenges to successful civil claim

Civil action for sexual assault is not insulated against the general problem with our justice delivery apparatus in Nigeria. The reality is that judges are overworked and without the requisite tools to do justice in a timely and efficacious manner. Just as in criminal proceedings, it is almost as if we have structured the system to be incapable of doing justice. With the volume of cases judges struggle to resolve on a daily basis and given limited infrastructure, sexual assault victims, just like other claimants, are likely to become frustrated with the system and resign to fate.

A visit to most courts across the country would show our lack of interest in a civilized way of life. Court buildings, except in a few places, are often the worst public structures around. The court rooms are irritating without modern means of communication and recording. How do we convince the rational man that we care about justice and fairness? How do we reject the Hobbesian state of nature when we pay no attention to the system that lubricates the wheel that repels it? It is often said that a man’s statement of account reveals where his heart lay. Our investment in justice administration shows either we do not understand the essence of the wall against instinctive behavior or it is not in our scale of preference. Our society is largely what it is today because we endorse the crude man by our actions.

Another challenge is the ridiculous damages and costs often awarded in our courts. This deprives indigent and vulnerable litigants who are often the victims of rape and other sexual offences access to justice. In other climes, robust damages and costs regimes allow third party funding of litigation with the understanding that the third party would recover his funds from damages and costs.  It also enables legal practitioners to readily take up cases on contingency once they are reasonably sure of success. As I have argued elsewhere, a realistic costs system is a public policy consideration that will spur a revolution in justice administration in Nigeria[17].

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Conclusion

There are many obstacles to successful criminal and civil actions against rape and other sexual offences. At the root of the problem is our culture of silence, impunity and lack of sufficient interest in the machinery for a civilized way of life. Culture is a powerful tool that shapes human behavior. When it is such that the society is not even consciously aware of it, it can be devastating.

Beyond civil and criminal prosecution for sexual offences, our collective outrage against the offences should be so high that the society becomes a place that is not safe for sexual offenders. Apart from the fact that such a cultural environment will influence our institutional approach to dealing with the problem including policing, legislative and judicial, it will inherently put the crude man in check. Rape under whatever circumstances should not be condoned because it is symptomic of a crude man who still lives in the Hobbesian state of nature with his animalistic instinct dangerously intact. Such a man should not be accommodated in a civilized society. Simply dismissing an allegation of rape provides protective umbrage under which the crude man will continue to act.  When the crude man knows the story can be told and that the whole world can hear it and demand investigation, he would realize his protection is gone and begin to control his animalistic behaviours.

Elvis Evbaruovbokhanre Asia, LL.M, MCIArb, Grad.Icsan, ACTI is a Legal and Tax Practitioner, Chartered Secretary, Member of the Chartered Institute of Arbitrators (UK) and Writer.

Footnote:

[1] https://www.youtube.com/watch?v=YLFQ5rQzi3U

[2] Another woman has since made a similar allegation. See https://www.youtube.com/watch?v=Ver-CUWZZ1g

[3] See section 36 of the 1999 Constitution (as amended)

[4] https://www.youtube.com/watch?v=DhQ-GudsL4w&list=PLlhgitmxGouaj44yByKZywVqCbc0VPBhg

[5] See section 357 of the Criminal Code (applicable in the South) and section 281of the Penal Code (applicable in the North).

[6] Other elements are (1) That the accused had intercourse with the Prosecutrix. (2) That the act of sexual intercourse was done without her consent or the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation. (3) That the Prosecutrix was not the wife of the accused. (4) That the accused had the mens rea, the intention to have sexual intercourse with the Prosecutrix without her consent or that the accused acted recklessly not caring whether the Prosecutrix consented or not. See POSU & ANOTHER VS THE STATE (2011) 3 NWLR Page 393; – IKO VS STATE (2003) 3 ACLR Page 49, POPOOLA V. STATE (2013) LPELR-20973(SC), Ekpo & anor. v. The State (1976) LPELR-1095(SC)

[7] See Ivwighre v. The State (2018) LPELR-44862(CA)

[8] See  ISAH AHMED v. THE NIGERIAN ARMY (2010) LPELR-8969(CA)

[9] This was an expression by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, 9th ed., book 4, chapter 27, p. 358 (1783, reprinted 1978). The philosophical foundation for the principle however dates back to centuries before him.

[10] There are however crimes in respect of which the law demands strict liability with a departure from these principles. Perhaps rape and sexual offences should qualify.

[11] Alex Ivwighre v. The State (supra)

[12] See Elvis Asia, “Regulation of ‘fake news’ and the right to free speech” https://www.linkedin.com/pulse/regulation-fake-news-right-free-speech-elvis-e-asia-ll-m/

[13] See Elvis Asia, “Employers Liability for Failure to Investigate Sexual Harassment in Nigeria”. Available online at https://www.linkedin.com/pulse/employers-liability-failure-investigate-sexual-elvis-e-/

[14] See Esi v. CNPC/BGP INTERNATIONAL & ANOR (2014) LPELR-22807(CA

[15] First Bank of Nig. Plc. & Anor. V. Ernest G.A. Onukwugha (2005) 16 NWLR (pt 950) 120 at 152 and Ndibe  & Ors. V. Ndibe (2008) LPELR-4178(CA

[16] Se Ebulue & Ors v. Ezebuo (2018) LPELR-44685(CA), F. B. N. PLC & Anor. V. ONUKWUGHA (2005) 16 NWLR (PT. 950) 120 AT 152( F- G)., and AQUA V. ARCHIBONG & ORS. (2012) LPELR – 9293 (CA).

[17] See Elvis Asia, “Recovery of Costs of Legal Representation in Lagos State High Court : A review of Chris Baywood Ibe & Anor v. Bonum Nig. Ltd”. Available online at https://www.linkedin.com/pulse/recovery-costs-legal-representation-lagos-state-high-court-elvis-e-/

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