I have read so many commentaries on the Chrisland Students’ Sex Tape as to the voluntariness or otherwise of the girl-child in the course of the intercourse even with lawyers holding the view that what happened is a case of consensual sex as the girl-child was enjoying it by giving different sex position.
While I concede that the video did not in any way suggest being forced into the act, I hold the view that the act in question against a minor still amounts to Rape.
Section 277 of the Child Right Act, 2003 defines a child as a person under the age of eighteen (18). While Section 31 of the same Act, states that any carnal knowledge with a child with or without her consent is Rape and the offender is liable to imprisonment for life.
The Act (Law) went further to state that it is immaterial if the offender believed the child to be 18yrs or above and it is also immaterial if the child gave consent and stimulated the entire sexual activity.
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That Section implies that, once it can be established that she is a child, then she cannot give consent and therefore whatever consent that she must have given is deemed in law to be no consent and any carnal knowledge of her will still have amounted to Rape.
The Child Right Act, has by that law made the Crime of Rape against a Child to be a strict liability offence as the intention (men’s rea) of the offender is immaterial.
Unfortunately, the Child Right Ac is silent as to whether a male child can commit the offence of Rape on another female child because, by Section 277 of the Act, a child was defined as a PERSON under the age of 18, which accommodates both male and female.
However, the offence of Rape from time immemorial and various judicial interpretations have always been gender-sensitive and the said offence can only be committed on a woman because of the ingredients of the offence that must be proved before a conviction can be secured.
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The point must be made that Section 30 of the Criminal Code states that a male person under the age of 12yrs is presumed to be incapable of having carnal knowledge.
The implication is that where a male child is under the age of 12, he is considered in law not to have the capacity to commit the offence of Rape.
The combined effect of all these Sections, therefore, is that a male child can be charged with the offence of Rape provided he is 12 years and above and the consent given by the female child is deemed in law to be NO CONSENT as she cannot give consent to sex.
