I know the title would have already earned me more enemies than friends and I also know that so many would be waiting to crucify me, but just before you do so, let me quickly clarify things.
First, this title is not entirely true, nay it is not even correct, it deceptive as it is not by any means a defence for the rapist. I do not support rape and I am not a rapist. I lend my voice against it at every available opportunity. As a lawyer, I have offered pro bono service to a rape victim because of my genuine dislike for that crime. And while I cannot swear that I would never defend an accused rapist in my professional capacity (since my professions enjoins us to defend every accused person irrespective of the crimes they might have been accused of), I have never had the inglorious and undesirable opportunity to do so.
Second, the crux of my argument is not really about whether the act(s) of a rapist are justifiable or otherwise, but rather whether there are things that victims and vulnerable persons could do that can prevent or reduce instances of rape, such as avoiding moving at ungodly hours and in desolate places or routes, avoiding being alone with strange people, carrying spray pepper about, training in martial arts etc. particularly, I am concerned here about how dressing can encourage rape.
In discussing this issue, I relate my stance to the defence in law of torts called ‘contributory negligence’ wherein a person who alleges that a wrong has been negligently done to him or her may have damages apportioned to him as well as the person who did the harm, in respective proportions, on the grounds that he/she failed to take reasonable care of himself in his/her own interest. Thus for instance, a motor-cyclist who was knocked down by a negligent car-driver and thereby sustained injuries would be contributorily negligent in not wearing a crash helmet at the time of the crash.
The highly revered Lord Denning explains contributory negligence thus: “a person is guilty of contributory negligence if he ought reasonably to have forseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.” (emphasis mine).
It is in this connection that I arrived at the concept of ‘contributory provocation’ in rape cases. Please take note that there is no such concept known to the law of rape nor our criminal law as a whole, neither is this a suggestion for an amendment to the law of rape in Nigeria.
Take note that contributory negligence is not a total defence but only goes to the quantum of damages to be awarded to the injured person. I am not suggesting that the punishment of the rapist should be ameliorated, no! I am rather for stiffer punishments for the rapist.
My argument is less legal and more moral. It goes to the modes of dressing amongst ladies especially who form the higher percentage of rape victims. I have argued over and over that a dress which exposes certain parts of the woman’s body is capable of awakening emotions in men. Someone once argued that ‘so because men are like animals I should not feel free to put on what I like?’ And I laughed, the reason is because, while there is no such law that prohibits her from dressing as she deems fit, the law cannot stop that man from raping her, at best the law will simply punish that man for raping or molesting her, which in essence is medicine after death and may not be able to repair the damage that would have been done.
I strongly oppose a stigmatization of victims and received with gladness the amendment to our Evidence Act which in effect removes the right of a person accused of rape to bring evidence of the victim’s past sexual history as evidence of her ‘immoral character’ in defense to a charge of rape. However the arguments that I put up here are less for victims, and more for potential victims or persons who are most vulnerable.
The analogy is apt of a person who left his gate and doors opened while he was away or asleep and thieves invaded the house and carted away valuables or another who failed to activate a security device in his car and had robbers quietly drive it away. While we may not necessarily blame the victims in these cases, but we would expect that others would learn from these incidences and take precautionary steps to avoid becoming victims themselves.
Get this straight, I am a man, married, happily at that, and I have a daughter who is nine years old. I have been married for about ten years, yet whenever my wife puts on a dress that exposes vital parts, I still get that feeling. (PG18 please). Now with this knowledge, I take it upon myself to caution my wife from time to time about how she dresses when she’s leaving the house and she would usually get something else to put on, of course not a purdah (no offence meant to those who use it), usually still nice, less explosive and still makes her look good.
Similarly, I avoid the temptation of being permissive of such dressing from my daughter, not necessarily because it doesn’t make her look good but because I know she can still look good without exposing flesh, because I know that it could attract men with ‘uncontrollable emotions’ to her, because I know that if I don’t curb it now that she’s still quite young, it is going to be even more difficult to do so when she’s older.
Again, taking precautionary measures is not fool proof that you will not fall a victim, rather it simply reduces your chances of falling a victim. However the measures you want to take will not hurt anyone and it comes at no cost to you and besides it accords with what is generally regarded as ‘decent dressing’ world over.
In everything that you do, you must take into account the possibility of others being careless, even bestial. The fact of existence of rape and rapists is not new and is real. Wouldn’t you rather dress ‘properly’ and save yourself the risk of falling a victim? Shouldn’t you rather avoid contributing to the provocation that eventually hurts you? This is the crux of my argument.