Sexual Consent Obtain by Fraud or Deceit is Rape – Opinion in Defence of Queency Benna

Sexual Consent Obtain by Fraud or Deceit is Rape – Opinion in Defence of Queency Benna.

By. Pelumi Olajengbesi Esq.

Making the rounds on social media and attracting genuine but lay reactions is the cathartic video of a fairly unknown Singer, Queency Benna, laying an allegation of rape against a lesser known man (hereafter referred to as “Alaskaobi) who, within a few hours, countered her claim in an interview made public. In the said interview, the alleged rapist narrates that he had consensual sex with Miss Queen Benson but admits reneging on an earlier agreement to pay a certain sum of money to her. In seeking to acquit himself of the allegation of rape, he may have inadvertently confessed to what is refered to as ‘rape by fraud’ or ‘rape by false pretences.

Section 357 of the Criminal Code identifies rape as having unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent act, or, in the case of a married woman, by personating her husband. For emphasis, by means of false and fraudulent act.

If we take the accused’s narrative, he is culpable for rape by false or fraudulent pretense arising from a deliberate failure to fulfil the bargain upon which he sought and received Miss Queen’s consent to have intercourse with her. Her consent, though given without force or threat, was not freely given. It was predicated on money expected to be given and received for the act, a refusal to do which, as in this case, sets it up on all fours as deceitful intercourse or rape by fraud or false pretences.

Rape by fraud is a form of sexual predation not always prosecutable or usually ignored by the society yet it is rape by statutory proscription and there is thus the need for the Nigerian justice system to widen the scope of negative consent in rape to address issues like this.

The summary basic elements that must be established in a rape trial are unlawful carnal knowledge of a woman or girl without her consent, or with her consent where it was obtained by duress, fraud or intimidation. The Supreme Court of India in Uday v. State Of Karnataka held that consent obtained by fraud is no consent. The court expressly aligned with a High Court judgement in which it was expressly stated that though the victim had consented to sexual intercourse with the appellant, the consent was obtained by fraud and deception because it was obtained by making a false promise. The simple position in law is that fraud vitiates consent immediately and puts the parties in a situation that the consent was never given.

Also, in R v. Linekar; the defendant agreed to pay for sexual intercourse with a woman but later refused to. The trail judge ruled that that failure constituted deceit and effectively negated the consent given for the sex. Though upturned by the court of appeal, this rightly explains the intent of the draftsman of our law on rape in section 357 of the Criminal Code and elsewhere and, although a specific area generally lacking in judicial pronouncement, its occurrence is common and deserving of judicial attention.

Our criminal justice system have a duty to protect its citizens guided by every letter of the law and not social conventions or interpretations. Regrettably, cultural and traditional perspectives on relations between men and women with regards to sex overwhelms perceptions on rape, making it both difficult to admit and prosecute.

There is the need for men and women by virtue of VAPPA to properly understand what constitutes rape and the need to stay away from such tendencies. As in this case, a pledge to pay for sex makes the consent received conditional on the fulfilment of that pledge. A failure to pay as agreed therefore negates the consent given. The absence of consent consequently translates to rape.

Rape is a despicable and condemnable offence that is against the human person and humanity. Victims of rape suffer unquantifiable anguish, some are diagnosed with post-traumatic stress disorder and dissociation from reality, depersonalization amongst so many other psychological concerns. We must stop rape in all its form and this is very important. To do this, what constitutes rape must be widely known and the courts must more boldly approach adjudication on rape.

Pelumi Olajengbesi Esq., is a Legal Practitioner and the Principal Partner at Law Corridor, Abuja.