Sexual assault is a seriously under-reported crime. Victims and survivors do not report their assault to law enforcement for several reasons; such as, fear of retaliation from perpetrators; feelings of shame and embarrassment; a belief that the rape, abuse or harassment was a minor incident and not a police matter; and a concern that police and prosecutors would question their veracity and credibility. Victims who report the crime and are willing to cooperate with police and prosecutors as the case moves forward may encounter criminal justice officials who are skeptical of their allegations and who question their credibility. Sadly, victims experience these negative outcomes all too often. There is much to be done, there is much that can be done if sexual assault is to be treated as the violent crime it is and if victims of sexual assault are to be treated with respect and dignity.
We had a sit-down with Prof. Chidi Odinkalu to discuss the state of the criminal justice system in the country and the impact it has on the rate of rape prosecution. Prof. Chidi Odinkalu is a Nigerian lawyer and human rights activist. He is the senior legal officer with the African Program of the Open Society Justice Initiative. He is a Barrister and Solicitor of the Supreme Court of Nigeria and the Chairman of the Governing Council of Nigeria’s National Human Rights Commission. Prior to joining the staff of Open Society Justice Initiative, Prof. Chidi was a lecturer in laws at Harvard Law School, Cambridge, Massachusetts, the Senior Legal Officer responsible for Africa and Middle East at the International Centre for the Legal Protection of Human Rights in London, Human Rights Advisor to the United Nations Observer Mission in Sierra Leone, and Brandeis International Fellow at the Centre for Ethics, Justice and Public Life of the Brandeis University, Waltham, Massachusetts, among other great accomplishments. It is a huge honor to have him lend his voice on this topic.
The pain of sexual assault doesn’t just end once the assault is over but is rather perpetuated both by the response from the survivors’ peers and by the authorities who continue to fail survivors. Why do think this happens, and how can we change these experiences?
Well, I’m not sure I can fully, authoritatively tell you why it happens, but it is possible to speculate and so what I will say subsequently is speculative because I don’t necessarily have conclusive, empirical evidence, but I think there are one or two things it is possible to point to. To begin with, one of two sexes could be victims of sexual violence – the female or male sex. The experiences of sexual violence by both sexes are considerably different…
No one experience is the same actually.
Thank you. Now, for the female in our society, they are for the most part objectified and largely seen as a piece of meat. They are sexualized into subservience and acceptance of objectification and the reflex response to reports of sexual violence against a woman who is outside marriage would be, “so what were you wearing?” “what kind of come-on did you give him?” “why did you go there?” so that becomes double or triple victimization. For instance, with a victim who has contracted a disease or who got pregnant from the rape, the victimization just goes on. With a married woman however, the answer is that as a married woman you cannot be raped assuming the perpetrator is your husband. If the perpetrator is not your husband or partner, you lose everything. You lose your marriage, you lose your children because the popular assumption becomes that it must have been an affair, you must have been guilty and so there is also multiple victimization. For the male, first, society denies that you can be raped. So, there is multiple victimization. Now, around all these narratives of multiple victimizations comes an additional factor of difficulty of proof. We are not a society that is heavily invested in forensics of anything at all, not to talk of forensics of sexual violence. And so ultimately, you’re left as a victim or survivor on your own. And I do think that that default setting of leaving victims and survivors on their own is at the heart of the question that you posed.
You’re right, then how do you think we can change these outcomes and experiences?
Again, there’s no one-size-fits-all. To begin with, I do think we’ve got to be a society that cares about much more than “it is not your portion!” and “God forbid! It will never happen.” That means we’ve got to be the society that cares about evidence, cares about trying to establish facts and cares about following facts to wherever they lead to, irrespective of who is affected. We’ve got to be a society that cares, period! If you don’t care you’re not going to pursue these things. And because particularly, sexual violence is that specie of crime in which the evidence is inside the body of the victim, it’s very intrusive. And a hypocritical society like Nigeria that believes in outward appearances and piety at the expense of rigor and evidence is not particularly equipped to deal with what it can reveal. The human body is an awkward place to look for evidence anyway. If it’s male, you’re looking for it in the orifices that you may not like and if it’s female, you’re looking for it in the orifices that the female may not like. Either way, basically these things require sometimes that you look in orifices that people don’t believe are meant for any form of sexual activity, for the most part. We are a society that thrives in denial. So, all those things add up to a society that is not prepared to form facts objectively and without that it is difficult to address these pathologies.
We believe the legal system is in dire need of serious reforms to redress the balance in a system that is stacked against victims. How do you think this can be achieved?
The problem with the legal system is inertia. I say inertia because our laws of sexual violence are very Victorian. They were made when Queen Victoria was the Queen of England. And Queen Victoria died in 1901. Our criminal code and penal code for the most part, except for Lagos State which reformed its criminal laws in 2011, every other piece of criminal legislation was inherited from Pre-Colonial England or Pre-Colonial Sudan. And they were drafted sometime in the period between 1885 and 1895, Queen Victoria was still the Queen of England then. And the notion of human sexuality and of sexual violence has dramatically evolved since then but it has not yet been captured in law. Lagos, for instance, updated its law in 2011 and when you look at the sexual laws of Lagos and compare them with the rest of the country, the difference is like night and day. And it’s no accident therefore, that Lagos has begun to record some progress in accountability for sexual violence. It may not be exactly where we wish it to be, but Lagos is recording some progress in criminal accountability in response to sexual and domestic violence and in addressing post-violence trauma for victims of domestic and sexual violence. Lagos is not just acknowledging something that needs to be acknowledged but it is making a lot of progress compared to the rest of the country, where we are still stuck in Victorian and new Victorian attitudes. So, it is that inertia that has precluded the State and the Federal Capital Territory at the Federal level from changing the laws from what was inherited from those Pre-Colonial times.
So how can we turn this around?
We’ve got to update our laws. We’ve got to update our attitudes. We can’t continue to live with laws which no longer have a place in our 21st century. The idea that a husband cannot rape his wife, for instance, is a load of bullocks. It happens every day. It has happened to one of my sisters. In my extended family in the village, I have a first cousin who wanted to have sex with his wife few weeks after she delivered a baby and went on to have his way, and then the woman naturally started weeping at night and this alarmed us. Of course, she did not consent and as she was weeping he started beating her and that is how folks gathered around. What do you call that, If not rape? Everyone one of us knows these things but we deny it and the law does not offer any redress. Now, you think of the distinction between rape and defilement. Under our laws, it is a distinction between an adult victim and a child victim. So, if a child is raped it is not rape but defilement. And under our criminal code, that is supposed to be a lesser crime attracting lesser punishment than rape, which is totally ridiculous. I’d like to think that the idea of raping a child is much more serious than the rape of an adult, but that is inverted in our criminal code. So, these are the kinds of things that we’ve got to change. And then when you consider proof of the crime itself and the requirements of corroboration, all of that came in an age where there was no DNA evidence and there was no trace evidence and forensic science had not even evolved as such, now we currently have lots of stuffs that makes a lot of that entirely unnecessary, but it’s still in our laws of evidence, that’s where we are. And by the way, rape can only happen under these new Victorian pieces of legislation through penetration of the vaginal orifice, that means a perpetrator can perfectly rape someone through the anal orifice and it is not rape. If you do work on policing, you’ll see that a lot of times police do rape women not with the phallus as biological weapon but with their truncheons, inserting it into the woman’s vaginal orifice or into the anal orifice. That is not considered rape under our laws because it is not a penal penetration.
Australia and Michigan were the 2 first territories to reform sexual violence laws so that penetration of any bodily orifice with anything becomes rape. That is the status of the law in Lagos now. So, if you penetrate the mouth, the anus, the vagina, the ear, any bodily orifice with anything against the consent of the owner of the body penetrated, that is considered rape. In every other state of Nigeria, including the Federal Capital Territory, that would not be rape unless the penis is involved. So, there’s a very substantial reordering of the schematics of our legislation that we’ve got to do to bring us up to date with the 21st century. Of course, there’s nothing like homosexual rape represented which happens a lot particularly in the uniform services and amongst communities that are involved in long distance animal husbandry, for instance, and things like that. But those are not considered rape. And of course, among student populations, it’s also serious and in hostile communities, you see lots of rape through what is called unnatural offences, through orifices other than the vagina but we don’t address those.
It can be empowering to have a resolution in court that restores a sense of justice to victims and survivors of sexual assault; but oftentimes the legal process, from the encounter with police force to conviction in court can be traumatizing. What do you think can be put in place to prevent secondary victimization?
I’m not quite sure it is necessarily empowering. If you were a law student and a female, you’d probably know that the most traumatic class in the law undergraduate program is the class in criminal law where you study offences against a person, particularly the offence of rape. Why? Because the boys will not stop needling you. And all the sordid jokes about your bodily parts and the anatomy will be saved for that class. Just think about going through that class, think about any form of nasty comments that could be inflicted on anyone and you’ll see it in that class. This is just behaviors and reactions in class, now I’m thinking about a victim who must go to court to tell this story and expose their most intimate bodily parts in secret to secure a conviction, that is not empowering. It can be annihilating and traumatizing. It can destroy you. And we are in a society in which the skills for preparing people for that experience don’t exist and when an average victim or survivor anticipates that experience or lives through it, they’d rather avoid it. Because you’re not just going to live through that experience, the laws of evidence allow the defense to put your entire life on trial, your entire sexual history on trial, and invent things that don’t even exist. And so, it does not become a trial of the perpetrator, it becomes a trial of the victim or their virtue, or lack of virtue.
Therefore, in this country most people don’t think we should be prosecuting sexual violence against a sex worker because the defense would simply make negative comments of the sex worker and their vocation and everything. And yet, every night, in pretty much every major city in this country, law enforcement agents round up sex workers to extort money from them and the ones they don’t extort money from, they rape. The sex workers would simply wash up, go home, and try to pick themselves up and go to work the following day, that is the way it is. Now, many of them don’t think of it as a crime, those of them that think of it as a crime cannot report, they don’t have any recourse because for the most part nobody thinks that the crimes committed against them are worth prosecuting. It’s the underlying premise of the question that I think needs to be thought about again. It’s well possible that at least in this society conviction is not empowering because to convict you must go through prosecution and no victim wants to go through prosecution in this society. And the numbers of successful prosecution of this crime are not very great across the world and not just in Nigeria, granted some parts are better than others. Even in England the numbers are quite abysmal. In Australia there has been considerable progress since the reform of sexual violence laws in the early 70s, Michigan has made some progress as well. And that’s because you can now convict for different degrees of rape, now you’ve got 4 degrees of rape not just one and you can convict for those different degrees of rape, and you can convict for homosexual rape, marital rape, and so on. And then, the improvement in forensics has also accounted for the increase. So, overall, both the throughput and the output are still limited compared to prevalence.
Let me use that to return to your question about secondary victims. There is a great deal of secondary victimization in sexual violence which I think is also part of the reason for the absence of accountability because lots of families don’t regard sexual violence as a crime against the victim, they regard it as a crime against their honor and against their faith. And so, fathers and mothers would deny it so that they can palm off their traumatized daughters into the prism of the dignity of marriage which is nonsensical, it doesn’t make sense when you think about it. Because what you’re telling me is what they want to do basically is to avoid addressing the underlying damage that their daughter or son has suffered. And if they cared enough about the victim rather than about themselves, it would be much different.
Is it an issue of care or ignorance?
I think it is care. I don’t believe it is ignorance. Because you can see that we care about ourselves, our standing in society, and so they think, what will people feel if they found out that my daughter or son was raped or abused? Like, who cares really? But because we are invested in our social standing, we forget that the person who has been through this is a human being who needs care and that, I believe, holds the key.
Rape culture influences victims’ experiences with the justice system. How do you think rape culture can be effectively addressed? Through education, or what?
Yes, education is a factor. I also do think Law reform is a factor. Law enforcement agency reform is a factor. We’ve got to address the way Law enforcement handles sexual violence. But Lagos is showing the way, I do think Lagos deserves considerable commendation. The Domestic and Sexual Violence Response Team (DSVRT) is a multi-agency team. It’s got all manner of skillset and not only law enforcement. It’s got psychologists, legal people, medical people, etc. So that massing of a set of skills around the problem enables you to address it in a multi-dimensional fashion- the pathology of rape and the cultures that appertain to it and support the absence of accountability for it. I do think that that is the way to go. But we also need zero tolerance beyond just talking about criminal sanctions. For instance, in universities and tertiary institutions there’s a great deal of sexual violence that goes on. Young girls have got to hide and if the leader of one of the cults likes you, you’re finished unless you yield to him, you are going to be raped or drop out of school. Or if a lecturer likes your looks and your body if you don’t yield up to him or her, you stay in the university for eternity. So, universities have got to do a lot more.
That also means that professional bodies and unions like the Academic Staff Union of Universities (ASUU) can no longer continue to be complicit because the more they remain complicit and continue to support the unaccountable conduct or misconduct of their members, the more they become irrelevant. Students can no more take them seriously, so when ASSU speaks up on issues they may well have expertise and a good point of view on, I personally don’t take them seriously because as far as I’m concerned, they’ve lost their moral standing by condoning the culture of sexual violence against students and the objectification of students by their members. And that is why I’m generally not an ASUU supporter. I think ASUU has been criminally complicit in sexual violence in our universities. Yesterday I was with two recent graduates, one has just finished her youth service while the other is about finishing hers and both said separately and in the same setting, a lecturer can do anything and get away with it and they were telling me this in the context of stories upon stories of how lecturers have sexually molested students for marks. These lecturers doing this are not contract lecturers, these are members of the Academic Staff Union of Universities and the Academic Staff Union of Universities do know that these things happen, they’ve opposed the adoption of minimal standards and guidelines or regulations addressing sexual violence or sexual harassment in tertiary institutions. That is just criminal. I don’t think that is right. Now if bodies like ASUU and indeed if bodies like the Nigerian Labor Congress are not willing to support minimal standards against this kind of misconduct we have no hope of re-educating people.
Can you imagine if ASUU and NLC today woke up, and then you had FUMWA (The Federation of Moslem Women’s Associations of Nigeria) and you had CAN (Christian Association of Nigeria) and you had Supreme Council for Islamic Affairs deciding you know what, we must end this thing, it will end. And we will have the kind of educational resources and values reorientation resources behind this thing that we have never been able to contemplate, but no we are not interested in this. What are we interested in? North/South, Yoruba/Igbo, Christian/Moslem, Hijab or no Hijab, those are the things that we’re interested in not in things that will bring people together around constructive solutions to problems that affect people irrespective of race, or creed, or religion, or status, or sex, we’re not prepared to do that.
There is a “don’t ask, don’t tell” culture that surrounds sexual harassment in corporate organizations. Is there any hope at all for a truly conducive working environment for employees in relation to sexual harassment?
I don’t think that is a “don’t ask, don’t tell” culture, I think that is a culture of impunity. No, that’s a misnomer. In 2013, I led an inquiry into the Nigerian Bar Association (NBA) and one of the things we found was a pervasive culture of sexual harassment in the legal profession, across the board – from entry level to conferment of the rank of Senior Advocate of Nigeria and appointment to the judiciary. Lots of females are asked for, and people take it for granted that you can appropriate the virtues of a woman in return for her career progress which is criminal as far as I’m concerned. First, we say there are no ladies at the Bar, then what happens is that the ladies that are at the Bar for the most part, their male colleagues call them conference materials. And so young women at the Bar are appropriated as conference materials by senior colleagues who then look at them as objects for fun and enjoyment from one conference venue to the other. Whether it is National Conferences or International Conferences and it’s the same thing in most of our professions, institutions, and organizations. These are the kinds of things people get to deal with.
We need to have minimum standards of regulation, at the minimum, for every school, every tertiary institution, every organization. And there need to be ways to apply sanctions across the board. If, for instance, you had universities commission doing that, you had the Nigerian Stock Exchange saying that you know what, we’ll have these standards on these things for our shop floors and the corporate sector, and then you had the Nigerian Bar Association, the Nigerian Medical Association doing that, and other institutions following suit, things will change.
You can imagine the number of female patients who have gone to see doctors… you go to see your dentist, there is not a lot exactly that links your mouth to your breasts. So, you go to see your dentist complaining of tooth ache or tooth decay and the dentist tells you to remove your blouse and unhook your bra and he’s playing with your tits. Now you see, unlike the lawyers who do their courtroom advocacy in the open, doctors do their consulting behind closed doors. You’re a young woman and you go in there and your dentist is male and they finish fondling you and then write whatever they write which you don’t see, and in our society most people have been brought up not to question whatever doctors say or do, but what happens – the next day when somebody tells you to visit the doctor and you say no, you don’t want to go, and they don’t know why you said you don’t want to go. Now, if you had a situation where the major professional bodies have got basic standards governing these things, and of course the churches and mosques because a lot of pastors, priests, imams, alfas, bishops, are fondling their way through everything in a skirt. I’m not saying people will not have temptations, neither am I asking people to be perfect but I’m saying there are also ways through which we can promote positive cultures and one of them is by adopting basic guidelines on conducts in discipline and how people can grow. And through adopting the guidelines then promote skills, something very basic. For instance, lecturers or pastors or priests or imams should not be consulting young women behind closed doors, leave your door open. Something as basic as that. Other ways like standard setting, regulations, some scaling up on training, promoting constructive example, before we even talk about coercive enforcements. There are ways and means in which we can help to promote and address these issues. Like I said, DSVRT is an outstanding example from Lagos which I think every other state should adopt.
Is prison the only punitive measure for perpetrators? Can victims have monetary justice?
Prison obviously isn’t. I’ve talked about administrative measures, disciplinary measures against people, whether it’s against people in public service or schools, or corporate institutions, or law enforcement or indeed the boardrooms. You see how the #MeToo movement has led to a lot of these perpetrators being outed and made to face consequences of years of sexual harassments and assault. Of course, monetary compensations, why not. Of course, again that has got to go to a court though and then the difference between seeking monetary compensation in civil proceedings and seeking imprisonment in criminal proceedings is the difference between proof and the balance of probabilities in civil proceedings against proof beyond reasonable doubt in criminal proceedings which is a little higher.
Do we have crime victim compensation program in Nigeria?
No, not that I know of. There is really no compensation program for anything in Nigeria, not just crime victims. It’s victims of abuse of power. It’s victims who lose their lands to the expropriation powers of the State, powers of eminent domain. It’s anything and everything.
Most times victims are afraid to appear in court because they fear facing the perpetrator, is it possible for a victim who wishes not to see the perpetrator to still give testimony without appearing in court?
Yes of course. There are different ways of doing that in different countries. You can disguise the appearance of the victim. You can assign a different identity to the victim. And in fact, different countries have legislation to limit or exclude the cross-examination of the prior sexual history of the victim. So, there are ways in which you can, through both jurisprudence and law reform, minimize the trauma of appearance in court and incentivize victims who would otherwise have precluded themselves from showing up in court.
Many times, the prosecutor may not be diligent in following up a case. In such instances, what are the options open for a victim at that time?
Without support it is difficult, frankly. As a victim, you’ve gone through this thing that is quite traumatizing, why do you want to be chasing up the prosecutor all by yourself rather than looking to see how you can heal quietly and contain your shame and indignity. It’s entirely illogical. It’s counter-intuitive for a victim who does not have support to be chasing up a prosecutor. The first thing we must find out is how we can construct a society that cares enough to provide minimal support, at least, to the victims.
What about in cases where the victim is an infant, how are testimonies gathered especially when the child cannot talk. Are these hearings public? How can evidence in such situations be gathered?
First of all, the Constitution and the Child Rights Act create mechanisms which make it possible for courts to preclude the public from proceedings in which the well-being of a child is an issue so that is not a problem. Of course, the only form of evidence is not just oral testimony, you can have forensic testimony. If for instance there is likely the penetration of a child, particularly the younger the child is the more likely it is that you’re going to have some physical damage, it’s not just physical evidence. There’s damage to tissues, organs and structures of the physiology of the child and all of that constitutes evidence of what transpired, then ultimately it is a question of the skills with which people are willing to mop up that evidence and organize it in a way that is understandable. And for that you don’t just need the body of the child, you also need the role of experts who will understand what is happening and be able to take the court through a concise explanation of what has transpired to enable it to reach its verdict.
We are deeply thankful to Prof. Chidi Odinkalu for graciously answering our many questions. You can find him on Twitter: @ChidiOdinkalu. The conversation is far from over, what has been your experience with law enforcement and the criminal justice system as a victim of sexual violence or as an advocate/activist? How do you think we can do better in this area? Kindly share your thoughts.