A Comparative Analysis of Nigerian and English Law

A woman agrees to have sex with her partner, but only on the condition that he uses a condom. He removes it without her knowledge. Another person agrees to sexual intercourse but, halfway through, changes her mind and asks that it stop. A wife expressly refuses sexual intercourse, but her husband proceeds nonetheless. In each of these situations, the question is deceptively simple: Was there consent?

The difficulty, however, lies in recognising that consent is rarely as straightforward as a "yes" or a "no". Sexual autonomy encompasses not only the decision whether to participate in sexual activity, but also the freedom to determine what activity is agreed to, on what terms, and for how long. The law must therefore confront circumstances in which consent is conditional, limited, withdrawn, or apparently given under circumstances that call its validity into question.

This is particularly important in the law of rape. The offence is not merely concerned with the physical act of sexual penetration; at its heart lies the question of whether that act occurred without the complainant’s legally valid consent. Yet the extent to which the law defines, protects and determines consent differs considerably between jurisdictions.

Nigeria has not remained static. The enactment of the Violence Against Persons (Prohibition) Act 2015 marked a significant development in Nigerian sexual-offence law, moving beyond the narrower traditional conception of rape and expressly recognising circumstances in which apparent consent may be vitiated.¹ Nevertheless, the Nigerian framework must be examined against a more elaborate statutory treatment of consent in England and Wales. Under the Sexual Offences Act 2003, consent is expressly defined by reference to choice, freedom and capacity, while the legislation further provides evidential and conclusive presumptions concerning the absence of consent.²

The comparison becomes even more revealing when consent is examined at its boundaries. Can consent to one sexual act amount to consent to another? Can a person consent to intercourse subject to a condition, such as the use of a condom? Can consent be withdrawn after sexual activity has commenced? Does submission necessarily amount to consent? And does marriage alter the legal significance of a person’s refusal to engage in sexual activity?

English law has developed specific principles addressing many of these questions. Its statutory framework recognises that consent may be given to one form of sexual activity but not another, may be given subject to conditions, and may be withdrawn during sexual activity. The Nigerian position, by contrast, requires closer examination to determine whether these principles are equally recognised, sufficiently articulated and effectively protected.

This article therefore examines the Nigerian and English approaches to consent in rape law, not merely to determine which jurisdiction has the broader statutory definition, but to ask a more fundamental question: has Nigerian law developed a sufficiently comprehensive conception of consent to protect sexual autonomy while preserving the fundamental safeguards owed to an accused person?

In answering that question, the article considers the meaning and scope of consent, conditional and specific consent, withdrawal of consent, deception, incapacity, marital rape and the accused person’s belief in consent. It ultimately asks whether Nigeria has truly caught up with the evolving understanding of consent reflected in the law of England and Wales—or whether the modernisation of Nigerian rape law remains incomplete.

CONCEPTUALISATION: RAPE

The starting point for any comparison of rape law must be the statutory definition of the offence. In Nigeria, the legal framework has evolved considerably from the traditional conception of rape under the Criminal Code. Section 357 of the Criminal Code defines rape principally in terms of unlawful carnal knowledge of a woman or girl without her consent, or where consent is obtained through specified forms of force, threats, intimidation, fear, fraudulent representation or impersonation of her husband.³

The enactment of the Violence Against Persons (Prohibition) Act 2015 ("VAPP Act"), however, marked a significant departure from this narrower framework. Section 1 of the Act adopts a broader and gender-neutral definition, criminalising intentional penetration of the vagina, anus or mouth of another person with any part of the body or anything else where the other person does not consent, or where consent is obtained through circumstances including force, threats, intimidation, fear of harm, fraudulent representation, incapacitating substances or impersonation of a spouse.⁴ The Act, however, operates as federal law only within the Federal Capital Territory; its application in a given State depends on that State having separately domesticated it, so that the older Criminal Code and Penal Code provisions remain the operative law in States that have not done so.⁵

The significance of this development should not be understated. The VAPP Act moves Nigerian law beyond the traditional conception of rape as essentially non-consensual vaginal intercourse involving a female complainant. It recognises that sexual penetration may take different forms and, more importantly for present purposes, expressly places consent at the centre of the offence.

The position in England and Wales is similarly anchored in the absence of consent, but the Sexual Offences Act 2003 constructs a more elaborate statutory framework around it. Under section 1, rape occurs where a person intentionally penetrates another person’s vagina, anus or mouth with his penis, the other person does not consent, and the accused does not reasonably believe that the other person consents.⁶ The reasonableness of that belief is determined in light of all the circumstances, including any steps taken by the accused to ascertain consent.

Crucially, the 2003 Act does not leave the meaning of consent entirely to ordinary language or judicial inference. Section 74 provides that a person consents where they agree by choice and have the freedom and capacity to make that choice.⁷ Sections 75 and 76 then establish, respectively, rebuttable evidential presumptions and conclusive presumptions concerning the absence of consent in specified circumstances.⁸

The difference, therefore, is not that Nigeria recognises consent while England and Wales do not, nor that one jurisdiction treats consent as important and the other does not. Both do. The more significant question is how far each legal system has gone in defining the concept, identifying its boundaries and determining when apparent agreement should have no legal effect.

That question becomes particularly important once consent is examined beyond the simple moment of saying “yes” or “no.” Can consent be limited to a particular sexual act? Can it be given subject to conditions? Can it be withdrawn after sexual activity has begun? Can submission be mistaken for consent? And can marriage alter the legal significance of a person’s refusal?

It is in answering these questions that the real differences between the two frameworks begin to emerge.

CONCEPTUALISATION: CONSENT

The law may begin its inquiry into rape by asking whether sexual activity occurred without consent, but that question immediately gives rise to another: what precisely amounts to consent?

In England and Wales, section 74 of the Sexual Offences Act 2003 provides a deceptively simple answer. A person consents where they “agree by choice” and have the freedom and capacity to make that choice. The provision is significant because it treats consent as more than the mere presence of words or physical cooperation. It requires the law to look behind apparent agreement and ask whether the complainant was actually in a position to make a free and meaningful choice.

The three components of the statutory formulation — choice, freedom and capacity — therefore provide a useful framework for examining the boundaries of consent.

Choice:

At its most basic, consent requires a person to choose to participate in the sexual activity. This distinguishes consent from mere submission or compliance. A person may submit to sexual activity because of fear, intimidation or other circumstances without having positively chosen to participate in it. English judicial guidance expressly recognises circumstances in which a complainant may submit to sexual activity without consenting to it.⁹

This distinction is particularly important in rape cases because physical resistance cannot logically be the measure of consent. A person who does not fight back has not necessarily agreed to what is being done. Conversely, the absence of physical resistance cannot, without more, establish consent. The legal inquiry is directed at the person’s choice rather than at whether that person physically resisted the act.

Nigerian law similarly places absence of consent at the centre of rape. Under the VAPP Act, penetration constitutes rape where the other person does not consent or where apparent consent is procured through specified forms of coercion, intimidation, fear, deception or other circumstances recognised by the Act. The Nigerian courts have likewise held that the two essential ingredients of the offence are penetration and the absence of consent, and that the prosecution must prove both beyond reasonable doubt.¹⁰ The Nigerian framework therefore recognises that apparent agreement may not constitute legally valid consent. The more difficult question is whether Nigerian law has articulated the concept of free and autonomous choice with the same degree of precision.

Freedom:

The second component of section 74 is freedom. Consent must be given voluntarily rather than produced by circumstances which deprive the person of a genuine choice. The Crown Prosecution Service identifies, for example, threats of violence, abuse of a position of power and dependency as circumstances capable of affecting whether a person was truly free to choose.¹¹

This is an important development in the modern understanding of rape. It moves the inquiry away from the crude question of whether the complainant physically resisted and towards the circumstances in which the decision was made.

Nigerian law is not unfamiliar with this principle. The Criminal Code expressly recognises circumstances such as force, threats, intimidation and fear of harm in its treatment of consent, while the VAPP Act similarly identifies force, threats, intimidation and fear among circumstances capable of undermining consent.¹² The difference, therefore, is not that Nigerian law ignores freedom. Rather, the English legislation makes freedom itself an express component of the general definition of consent, providing a conceptual framework within which such circumstances can be assessed.

Capacity:

The final component is capacity. A person cannot meaningfully consent to sexual activity if they lack the capacity to make the decision in the first place. This becomes particularly significant in cases involving unconsciousness, certain forms of physical or mental incapacity, or intoxication.

The English courts have recognised that intoxication does not automatically eliminate consent. In R v Bree, the Court of Appeal held that a person may remain capable of consenting despite having consumed alcohol; however, capacity may disappear before the person becomes unconscious.¹³ Whether capacity was lost is ultimately a fact-specific question concerning the complainant’s state of mind at the relevant time.¹⁴

This approach avoids two equally problematic assumptions: that every intoxicated person is incapable of consenting, or that consent remains valid until the point of unconsciousness. Instead, the law asks whether the person retained the capacity to choose.

That distinction is particularly valuable because it demonstrates the practical importance of section 74. "Consent" is not treated as a binary concept triggered merely by an affirmative word or gesture. It requires an examination of whether the individual possessed the freedom and capacity necessary to make the choice attributed to them.

The Nigerian Position:

At this stage, the comparison reveals an important distinction. Nigerian law already recognises many of the circumstances in which apparent consent may be legally ineffective. The VAPP Act, in particular, represents a substantial development from the traditional formulation of rape, and the Supreme Court’s own definition of the offence — as carnal knowledge without consent, or with consent obtained by force, threats, intimidation or fraud — confirms that the concept was never confined to cases of overwhelming physical force.¹⁵ It would therefore be inaccurate to suggest that Nigerian law operates on an outdated notion that rape necessarily requires physical resistance.

The more difficult issue is coherence.

The English framework begins with a general statutory conception of consent — choice, freedom and capacity — and then builds further rules around that foundation. Sections 75 and 76 supplement section 74 with evidential and conclusive presumptions for specified circumstances. Nigerian law, by comparison, identifies several circumstances capable of vitiating consent, but the extent to which those provisions form a similarly comprehensive framework remains open to examination.

That distinction becomes crucial when consent is taken beyond the initial decision to participate in sexual activity. A person may agree to sex, but only on particular terms; may agree to one sexual act but not another; or may change their mind after sexual activity has begun. Whether the law recognises these limitations determines whether consent is treated as a continuing exercise of sexual autonomy or merely as a one-time permission to proceed.

It is to these boundaries of consent that the analysis now turns.

CONSENT IS NOT A BLANK CHEQUE

Consent to sexual activity is not a general authorisation for everything that may follow. It is specific to the sexual activity agreed to, capable of being subject to conditions, and capable of being withdrawn. The English framework makes this particularly clear: consent must be given for each sexual act, may be conditional, and may be withdrawn even after an initially consensual act has begun.¹⁶

This conception is important because the most difficult questions about consent often arise after the initial "yes." A person may agree to sex but not to every form of sexual activity; may agree only if a particular condition is respected; or may decide, once the act has commenced, that they no longer wish to continue. The legal significance of these limitations is therefore central to any meaningful conception of sexual autonomy.

Consent to one act is not consent to every act

Consent is ordinarily directed towards a particular sexual activity. Thus, agreement to vaginal intercourse does not, merely by virtue of that agreement, constitute permission for anal or oral penetration. The Crown Prosecution Service expressly recognises this distinction, noting that consent to one form of sexual activity does not amount to consent to other forms of sexual activity.¹⁷

The principle appears straightforward, but its significance is considerable. It rejects the idea that once a person has agreed to “sex”, the boundaries of that agreement are determined by the other participant. The person giving consent remains entitled to define what they are consenting to.

The Nigerian statutory framework reaches the question from a different direction. Section 1 of the VAPP Act criminalises intentional penetration of the vagina, anus or mouth where the other person does not consent to the penetration.¹⁸ Its formulation therefore permits the argument that consent must relate to the particular penetration in question.

What is less apparent, however, is the extent to which Nigerian legislation or reported Nigerian decisions have expressly developed the broader proposition that consent to one sexual act does not constitute consent to another. Unlike the English framework, the Nigerian legislation does not set out an overarching statutory definition of consent against which such questions can readily be assessed.

That distinction becomes even more significant where consent is not absolute, but conditional.

Conditional consent

Consider a person who agrees to sexual intercourse only on the condition that a condom is used. The other participant agrees, but deliberately removes the condom before or during intercourse without consent. Has the complainant consented to the sexual act that actually occurred?

English law has confronted precisely this question. In Assange v Swedish Prosecution Authority, the High Court accepted that a condition imposed by a complainant concerning condom use could be relevant to whether there was genuine consent under section 74.¹⁹ The CPS guidance subsequently identifies Assange, R (F) v DPP and R v McNally as important authorities in the development of conditional consent.²⁰

The reasoning is significant. The issue is not that every broken promise made before sex automatically transforms consensual intercourse into rape. Rather, the question is whether the condition formed part of the complainant’s choice to participate in the sexual act itself. The CPS guidance expressly cautions that not every failure to use a condom after an earlier agreement will necessarily amount to rape; the circumstances and the nature of the condition remain relevant.²¹

The same reasoning has been applied where a person agrees to intercourse on the condition that the other participant withdraw before ejaculation. In R (F) v DPP, the court considered whether deliberately disregarding such a condition could deprive the complainant of the freedom of choice contemplated by section 74.²² The case illustrates the broader principle that a condition may be sufficiently connected to the sexual activity to form part of the complainant’s consent.

This is an important development in the law of consent because it recognises something that a simple “yes/no” model cannot adequately capture: a person may consent to sex without consenting to sex on any terms chosen by the other participant.

The Nigerian position is less expressly developed. Section 1 of the VAPP Act identifies circumstances in which consent is obtained through force, threats, intimidation, fear, fraudulent representation or substances capable of taking away a person’s will.²³ It does not, however, expressly address the legal effect of breaching a condition upon which consent was given.

That does not necessarily mean that Nigerian law would treat such conduct as lawful. It does, however, reveal an area in which the English jurisprudence has provided considerably greater conceptual guidance.

Mid-sex withdrawal of consent

Perhaps the clearest illustration of consent as an exercise of continuing sexual autonomy arises where consent is withdrawn after sexual activity has begun.

Suppose a person willingly consents to sexual intercourse. Penetration occurs. A few moments later, that person says, "Stop." The other participant refuses and continues. The fact that intercourse began consensually does not answer the question. The relevant question becomes whether consent continued.

Under English law, the answer is clear. Section 74 does not treat consent as irrevocable once sexual activity commences. The CPS states expressly that consent may be withdrawn during an act which began consensually. Moreover, section 79(2) of the Sexual Offences Act 2003 treats penetration as a continuing act,²⁴ meaning that a person who initially lacks the necessary mens rea may become guilty of rape if they become aware of the complainant’s lack of consent and nevertheless continue.²⁵

The principle was recognised judicially in Kaitamaki v The Queen and has subsequently informed the English approach to continuing consent.²⁶ The CPS guidance states the principle in particularly direct terms: withdrawal of consent during penetration is legally possible, and continued penetration after the withdrawal may constitute rape.²⁷

The Nigerian position requires greater care.

The older Criminal Code formulation has historically generated uncertainty because it does not expressly explain the legal consequences of withdrawal of consent after penetration has commenced. Contemporary Nigerian commentary and legal scholarship have identified this as a difficulty in the traditional framework.²⁸

The VAPP Act improves the position by making the absence of consent to penetration the central question and by applying a broader, gender-neutral definition of rape. Yet it does not contain an express equivalent of section 79(2) of the English Act declaring penetration to be a continuing act. The precise treatment of post-penetration withdrawal therefore remains less expressly articulated in Nigerian legislation.

That distinction is important. A modern law of consent should not treat the initial decision to engage in sexual activity as an irrevocable transfer of sexual autonomy. If consent is genuinely an exercise of choice, the choice must remain capable of being changed.

Consent does not equal submission

This leads to a final distinction. Consent should not be confused with submission, acquiescence or compliance.

A person may comply with sexual activity because they are frightened, intimidated or believe that resistance will make the situation more dangerous. The absence of physical resistance therefore cannot, by itself, establish consent. The leading English authority on this point remains R v Olugboja, where the Court of Appeal upheld a conviction notwithstanding the absence of any physical struggle, holding that lack of consent is not confined to cases of force, threats or fraud, and that a jury is entitled to find submission short of true consent.²⁹ CPS guidance expressly directs prosecutors to distinguish consent from mere submission, acquiescence and compliance.³⁰

This does not impose a requirement that a complainant prove resistance before rape can be established. Nor does it mean that every instance of silence or passivity necessarily amounts to rape. The question remains whether, in the circumstances, the complainant agreed by choice and possessed the freedom and capacity to make that choice.

Nigerian law similarly recognises circumstances such as force, threats, intimidation and fear as circumstances capable of undermining consent, and the Supreme Court has confirmed that these vitiating circumstances form part of the very definition of the offence rather than a separate defence.³¹ The important comparative point is therefore not that Nigerian law ignores the distinction between consent and submission. Rather, the English framework places that distinction within a broader and expressly articulated conception of choice, freedom and capacity.

The significance of these distinctions becomes clearer when the apparent consent itself has been produced by deception, intoxication, unconsciousness or other circumstances capable of compromising a person’s ability to choose. Those situations raise a different question: not merely whether the terms of consent were exceeded, but whether legally valid consent existed at all.

WHEN APPARENT CONSENT IS NOT CONSENT

The boundaries of consent become even more difficult where the apparent agreement itself has been compromised. A person may appear to participate willingly while being subjected to fear or coercion, incapable of making a meaningful choice, or deceived about a matter fundamental to the sexual act. The question then changes from "What did the person consent to?" to "Was there legally valid consent at all?"

Deception presents a particularly difficult case. The VAPP Act recognises fraudulent representation and impersonation of a spouse among circumstances capable of vitiating consent.³² English law adopts a more structured approach. Section 76 of the Sexual Offences Act 2003 creates conclusive presumptions against consent where the defendant intentionally deceives the complainant as to the nature or purpose of the act, or intentionally impersonates a person personally known to the complainant.³³ Deception outside these narrowly defined categories is not automatically rape; it may nevertheless be relevant under the broader test of consent in section 74. In R v Jheeta, the Court of Appeal underscored the limited scope of the conclusive presumptions.³⁴

English law does not treat every lie preceding sexual activity as sufficient to constitute rape, but neither does it treat deception as legally irrelevant. It provides different routes through which deception may affect the question of consent. Nigerian law similarly recognises fraudulent representation, but does not provide an equivalent statutory distinction between deception attracting conclusive consequences and deception requiring an assessment of the broader circumstances.³⁵

Capacity presents another boundary. Intoxication, for instance, does not necessarily extinguish the ability to consent. In R v Bree, the English Court of Appeal recognised that an intoxicated person may retain the capacity to consent, while acknowledging that capacity may be lost before unconsciousness.³⁶ The critical question is therefore whether the complainant remained capable of making a choice at the relevant time.

The VAPP Act recognises substances capable of taking away a person’s will as circumstances in which consent may be vitiated.³⁷ Yet, as with other aspects of the Nigerian framework, it does not expressly develop the distinction between being impaired and being incapable of choosing with the same degree of conceptual detail found in the English framework.

Fear and coercion present a similar question. Nigerian law expressly recognises force, threats, intimidation and fear of harm as circumstances capable of undermining consent. English law addresses such circumstances through the general test in section 74³⁸ and, in specified cases, through the evidential presumptions in section 75.³⁹ Where the statutory conditions are met, section 75 permits the court to presume the absence of consent and the absence of a reasonable belief in consent, subject to rebuttal.

The broader lesson is that consent cannot be determined solely by observing participation. Someone may submit without freely choosing; participate while lacking capacity; or agree on the basis of deception that fundamentally affects the nature of the choice. Nigerian law recognises many of these circumstances, particularly through the VAPP Act. The English framework, however, goes further in organising them into a coherent statutory architecture of choice, freedom, capacity and evidential presumptions.

MARITAL RAPE: CAN A HUSBAND RAPE HIS WIFE?

Few questions expose the relationship between marriage and sexual autonomy more clearly than this one. If consent is a continuing and personal choice, can marriage itself supply that consent?

Under the traditional Nigerian criminal law framework, the answer has historically been problematic. Section 6 of the Criminal Code defines “unlawful carnal knowledge” as carnal connection occurring otherwise than between husband and wife,⁴⁰ while section 282(2) of the Penal Code provides that sexual intercourse by a man with his wife is not rape where she has attained puberty.⁴¹ The result is that, under these provisions, marriage operates as a significant barrier to a prosecution for rape between spouses.

The VAPP Act, however, complicates this position. Its definition of rape does not expressly exclude spouses. Instead, it criminalises intentional penetration where the other person does not consent, and even expressly contemplates a married person in identifying impersonation of a spouse as one circumstance in which apparent consent may be vitiated.⁴² Some Nigerian scholars therefore argue that the VAPP Act has effectively displaced the older marital exemption wherever the Act applies, notwithstanding its failure to use the words “marital rape” expressly. Others maintain that the absence of an express provision criminalising spousal rape leaves a significant legal uncertainty.

This uncertainty is not merely semantic. The VAPP Act is a federal enactment applicable in the Federal Capital Territory and in states that have domesticated it, while the Criminal Code and Penal Code continue to govern jurisdictions where applicable.⁴³ Thus, the legal position of a married complainant may depend, in part, upon which statutory regime governs the particular case. That fragmentation sits uneasily with the proposition that consent should be a personal right rather than a consequence of marital status.

The English position represents a much clearer departure from the historical common law. In R v R, the House of Lords rejected the proposition that marriage gives a wife an irrevocable consent to sexual intercourse with her husband.⁴⁴ The court recognised that the supposed marital exemption had become incompatible with contemporary understandings of marriage and personal autonomy and held that there was no marital exemption from the law of rape.

The significance of R v R extends beyond the particular offence. It rejected the underlying legal fiction that marriage transfers or permanently grants one spouse a right to the other’s body. Under the modern English framework, the question remains whether the complainant consented to the sexual activity in question. Section 1 of the Sexual Offences Act 2003 contains no exception for intercourse between spouses; its requirements are simply intentional penetration, absence of consent and the absence of a reasonable belief in consent.⁴⁵

The contrast is therefore striking. English law treats marriage as a relationship, not a continuing consent. Nigerian law, however, presents a more complicated picture: its older criminal statutes preserve a marital exemption, while the VAPP Act appears to move towards a consent-based position without expressly resolving the issue. The result is not simply a difference in statutory wording, but a question about the extent to which Nigerian law has fully embraced the principle that sexual autonomy survives marriage.

Ultimately, the difficulty with treating marriage as consent is the same difficulty exposed earlier in this article. If consent can be limited to a particular act, made conditional, or withdrawn after sexual activity begins, it is difficult to justify why the mere existence of a marriage should produce a different rule. Marriage may create mutual obligations, but it cannot logically transform a personal “yes” into a permanent one.

The question that follows is whether the law gives sufficient weight to the autonomy of the person who says no and, on the other side of that equation, how it protects an accused person from criminal liability where the circumstances reasonably suggested that consent existed.

THE ‘REASONABLE BELIEF’ CONCEPT

The law of consent cannot be concerned only with what the complainant intended. Criminal liability also requires an examination of the accused person’s state of mind. It is one thing to establish that a complainant did not consent; it is another to determine whether the accused knew, or reasonably ought to have known, that consent was absent.

This distinction is expressly built into the English offence of rape. Section 1 of the Sexual Offences Act 2003 requires the prosecution to establish not only that the complainant did not consent, but also that the defendant did not reasonably believe that the complainant consented.⁴⁶ In assessing whether such a belief was reasonable, the court must consider all the circumstances, including any steps the defendant took to ascertain whether the complainant consented.

The law does not ask only whether the complainant subjectively consented; it also asks whether the accused’s belief in that consent was objectively reasonable. The provision therefore recognises that a genuine but unreasonable assumption cannot necessarily provide a defence to rape. At the same time, it prevents criminal liability from being determined solely by the complainant’s subjective experience where the prosecution cannot establish the requisite state of mind on the part of the accused.

The English approach becomes particularly interesting when considered alongside the earlier discussion of conditional and withdrawn consent. If a person expressly says “stop”, deliberately removes a condom contrary to an agreed condition, or otherwise communicates that consent has ended, the circumstances may make it increasingly difficult for an accused person to maintain that a belief in continuing consent was reasonable. The question is therefore not whether the accused can point to an earlier “yes”, but whether, in the circumstances as they developed, there remained a reasonable basis for believing that consent continued.

Nigerian law approaches the issue differently. Neither the Criminal Code nor the VAPP Act contains an express equivalent of section 1’s requirement that the prosecution establish the absence of a reasonable belief in consent. Nevertheless, this does not mean that the Nigerian system dispenses with the accused person’s mental state or with the prosecution’s burden. Under Nigerian criminal law, the prosecution bears the burden of proving the elements of the offence beyond reasonable doubt, and that burden remains with the prosecution throughout the trial.⁴⁷

This distinction is important. Nigerian law therefore protects the accused through the general principles governing criminal responsibility and proof, whereas English law incorporates the question of reasonable belief expressly into the statutory definition of rape. The two systems consequently arrive at the problem from different directions.

The English formulation arguably provides greater clarity because it tells the court exactly what must be examined: did the complainant consent, and was the defendant’s belief in that consent reasonable? It also directs attention to the defendant’s conduct in ascertaining consent.

We therefore have a challenge of balance. The law must protect a person’s freedom to decide whether and how to engage in sexual activity without lowering the standard of proof required before another person’s liberty is taken away. A coherent law of consent must accommodate both principles.

This brings the comparison to its central question. Nigeria has undoubtedly moved beyond the traditional conception of rape and has placed the absence of consent at the heart of the offence. But when the difficult cases are considered — conditional consent, withdrawal, deception, incapacity, marital relationships and the accused person’s belief — does Nigerian law provide a framework sufficiently clear and comprehensive to protect sexual autonomy while maintaining the safeguards of criminal justice?

The answer is neither an unequivocal yes nor an outright no.

Nigeria has undoubtedly moved a considerable distance from the traditional conception of rape. The Violence Against Persons (Prohibition) Act 2015 places absence of consent at the heart of the offence, broadens the forms of penetration capable of constituting rape, and recognises circumstances such as force, threats, intimidation, fear, fraudulent representation and incapacitating substances. The Act also contains no express marital exemption.

In substance, therefore, Nigerian law is no longer anchored to the idea that rape is established only by overwhelming physical force or resistance. Its statutory language accommodates a more modern understanding of sexual autonomy. This is important progress and should not be understated.

The difficulty lies elsewhere: the law is less developed in explaining the boundaries of the consent it recognises.

The English framework provides a useful illustration. Section 74 of the Sexual Offences Act 2003 supplies a general conception of consent based on choice, freedom and capacity. Sections 75 and 76 then establish specific evidential and conclusive presumptions, while section 1 expressly requires consideration of whether the defendant reasonably believed that the complainant consented. English jurisprudence has subsequently applied these principles to questions that rarely admit of simple answers: consent subject to conditions, withdrawal during sexual activity, deception and the distinction between submission and genuine agreement.

Nigeria, by contrast, has many of the substantive ingredients but not always the same degree of statutory clarity. The VAPP Act tells us circumstances in which consent is absent or compromised, but does not provide an equally elaborate general definition of consent or an express statutory equivalent of the English reasonable-belief requirement. Nor does it expressly resolve every difficult question that arises when consent is conditional or withdrawn after sexual activity has commenced.

That does not necessarily mean that every protection found in English law is unavailable under Nigerian law. Courts can interpret existing provisions in accordance with their purpose, and the broad language of the VAPP Act may accommodate circumstances not expressly enumerated. But there is an important difference between a principle that can be judicially developed and one that the legislature has expressly articulated.

This matters particularly in criminal law. Clarity is not merely desirable; it protects both sides of the criminal process. A complainant should not have to rely upon an uncertain inference to establish that a condition attached to her consent mattered. Equally, an accused person should not be exposed to criminal liability on the basis of an undefined and unpredictable standard. A modern law of consent must therefore protect sexual autonomy without sacrificing the certainty required by criminal justice.

The more accurate conclusion, then, is that Nigeria has caught up in direction, but not entirely in detail. The VAPP Act represents a significant modernisation of Nigerian rape law, but the comparative analysis reveals areas in which greater statutory precision would strengthen the protection it seeks to provide.

The lesson from England and Wales is not that Nigeria should reproduce the Sexual Offences Act 2003 wholesale. Rather, Nigeria can draw from the underlying principle: consent should be understood as a free and continuing exercise of sexual choice, and the law should provide sufficiently clear rules for determining when that choice exists, when it is limited, and when it has been withdrawn.

The objective should therefore not be merely to make Nigerian rape law harsher. It should be to make it clearer, more coherent and more capable of protecting both sexual autonomy and the integrity of the criminal process.

RECOMMENDATIONS: WHAT SHOULD NIGERIA DO?

If the central weakness in the Nigerian framework is not the recognition of consent but the lack of sufficient clarity around its boundaries, reform should focus on precision rather than wholesale transplantation of foreign law.

First, Nigerian legislation should provide an express and general definition of consent. The concepts of choice, freedom and capacity provide a useful starting point. Such a definition would give courts a coherent framework for determining whether apparent agreement amounted to legally valid consent, rather than requiring each difficult circumstance to be resolved exclusively through inference from provisions addressing force, threats, fraud or intimidation. The English model demonstrates the value of beginning with a general statutory conception before addressing particular circumstances.

Second, the law should expressly recognise that consent may be specific, conditional and capable of withdrawal. The absence of clear statutory language on matters such as consent to a particular sexual act, terms and conditions, and withdrawal during sexual activity leaves room for uncertainty. Express recognition would not make every breach of a promise a sexual offence; rather, it would allow courts to determine whether the condition formed part of the complainant’s decision to participate in the sexual activity.

Third, Nigerian law should provide greater clarity on the accused person’s belief in consent. Any reform must preserve the constitutional presumption of innocence and the prosecution’s burden of proving guilt beyond reasonable doubt.⁴⁸ At the same time, legislation could expressly require courts, where appropriate, to examine whether the accused’s belief in consent was reasonable and what steps, if any, were taken to ascertain that consent. This would strengthen the protection of sexual autonomy without shifting the burden of proving guilt onto the accused.

Finally, the uncertainty surrounding marital rape should be resolved expressly. The coexistence of older statutory provisions containing marital exemptions with the VAPP Act’s broader consent-based formulation creates an avoidable area of uncertainty. Whatever legislative policy is ultimately adopted, the law should state clearly whether marriage affects the requirement for consent. A person’s marital status should not determine whether the same act is capable of constituting rape.

CONCLUSION

The law of rape begins with a deceptively simple question: was there consent? Yet consent is rarely as simple as a "yes" or a "no". It may be specific, conditional, withdrawn, or compromised by circumstances that deprive a person of genuine choice.

Nigeria has made significant progress, particularly through the Violence Against Persons (Prohibition) Act 2015. However, the comparison with England and Wales reveals that recognising consent is only the beginning. Greater statutory clarity is still needed on its boundaries, withdrawal, the accused person’s belief in consent, and the effect of marriage.

The goal should not be to replicate English law, but to develop a Nigerian framework that protects sexual autonomy while preserving the safeguards of criminal justice. Consent is not a blank cheque. It is a choice, and the law must be capable of recognising when that choice exists, when it is limited, and when it has been withdrawn.

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