From time immemorial, the celebrated institution of marriage has been widely recognised as a herald in every society. Due to the complexity of human relationships, various societies ascribe their own unique ideal as to what form the institution of marriage should take but all share the ideology that it is a Union.

According to the case of Hyde v Hyde (1886) L.R. 1 P & D 130, the court stated per Lord Penzance that:

“…Marriage… may for this purpose be defined as the voluntary union for life of one man and one woman to the exclusion of all others”

Due to the complexity of marital situations such as in polygamy, gay marriage, polyandry, the definition above is not widely acceptable. Albeit, all scholars share the idea that it is consensual. Rape on the other hand involves sexual intercourse without valid consent or consent by forcible seizure. It means the violation of one’s esteem.

According to Violence Against Persons (Prohibition) Act 2015, a person commits the offence of rape if;

  • He or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else;
  • The other person does not consent to the penetration;
  • The consent is obtained by force or means of threat or intimidation of any kind.

The reverberating effect of rape is like a sour taste of a bitter pill that never leaves the mouth of its victim. The crime is worse than murder because a murderer kills the body, but a rapist kills the soul. The devastating effect it has on the psychology of its victim is immeasurable; many rape victims never recover from it. Perpetrating such insidious crime within marital space is an abuse and a violation of a woman’s right to the dignity of human person which is guaranteed under the constitution.

How Marital Rape came to be

The grounds for marital immunity of rape prosecution were laid by Sir Matthew Hale in the History of the Pleas of the Crown, published in 1736, He wrote, ‘The husband cannot be guilty of rape for by their mutual matrimonial consent and contract, the wife has given up hers unto her husband, which she cannot retract.’ This was called the ‘Implied Consent Theory of Sir Hale.’

However, in 1991, the House of Lords in the case of R v. R [1991] UKHL 12 struck down its common law principle that a marriage contract implied a woman’s consent to all sexual activity.

What is Marital Rape?

Marital Rape (spousal rape) is non-consensual penetrative (anal, vaginal, oral) sex in which the perpetrator is the victim’s spouse. Marital or spousal rape is rape committed by one spouse against the other. It is an act of violent perversion by a husband against his wife where she is physically and sexually abused. The basic premise of this assumption is that the wife is considered to have given her irrevocable consent to sexual intercourse to her husband on marriage, and hence, the husband cannot be held guilty of rape which he may commit upon his wife.

There are many States that have either already enacted marital rape laws, repealed marital rape exceptions or have laws that do not distinguish between marital rape and ordinary rape. Australia was the first common law country to pass reforms in 1976 by making rape in marriage a criminal offence. Several Scandinavian countries and countries in the communist bloc passed such laws criminalizing marital rape including Sweden, Norway, Denmark, and the former Soviet Union and Czechoslovakia in the two decades before Since 1980s many countries including South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel have legislatively abolished the marital rape immunity. The European Parliament passed a resolution in 1986 pertaining to violence against women which called for criminalisation of marital rape.

In Nigeria law, marital rape is not yet a recognised offence. Considering the position of section 357 of the Nigerian Criminal code, the first ingredient for establishing the crime of rape is having an unlawful carnal knowledge. The law constricts the interpretation of “unlawful carnal knowledge” as that which takes place outside the ambits of marital relationship. This means that a husband cannot be guilty of raping his wife. In recent times effort has been made to expand the scope of rape such as in the Violence against Persons Prohibition Act 2015. The scope of the law still needs to be broadened to accommodate marital rape. Lagos state has a domestic violence law that expands the scope of sexual offence beyond unlawful carnal knowledge which makes prosecutable, a violent and abusive spouse who may be guilty of domestic violence which may also come in form of sexual violence.

The modern society of the Nigerian legal system is fast changing; the law must adjust to the climate to accommodate new realities, to be at the same pace with the society.


  1. Constitution of the Federal Republic of Nigeria Cap. C23 LFN 2004
  2. Criminal Code Cap. C38 LFN 2004
  3. Hale, Sir Matthew. History of the Pleas of the Crown (London, 1736).
  5. Violence against Persons Prohibition Act 2015


Fabusiwa Timothy Kayode graduated from the Faculty of Law University of Ibadan in 2019. He was one of the delegates in the ICRC Law Teachers Conference on International Humanitarian Law, Abuja the same year; a privilege which was only afforded by Law teachers. He is the first from the Faculty of Law to be afforded such privilege. He is a current student of the Nigerian Law School Lagos campus.