Story: Adenekan is a teacher at a high profile school in Lagos and Binta( false name) is a Nursery school child aged two years and eleven months old. On several occasions, Adenekan lured Benita to his office and did “bad things” to her by putting his mouth and hand in Binta’s Vagina. When Benita screamed because of the pain, he covered her mouth with his hands. Adenekan was convicted at the trial court and he subsequently appealed to the Court of Appeal. Thankfully, his appeal was dismissed.
What is Defilement?
Defilement is crime. Only children can be defiled. A person is guilty of defilement when he/she has sexual intercourse with the child who is under the age of 18.
In Lagos State, sec 137 of the Criminal Law of Lagos, 2015 provides that any person who has sexual intercourse with a child is guilty of a felony and is liable to imprisonment for life.
It is important to note that an accused is liable for the crime of defilement irrespective of whether the child gave consent. See Boniface Adenik v. State (2015) 7 NWLR (Pt. 1458) 237.
Ingredients of the Crime of Defilement
In the case of Adenekan v. State of Lagos (2021) 1 NWLR pt. 1756. per Garba J.C.A:
” the essential element or ingredient of defilement is that an accused person had carnal knowledge of or sexual intercourse with a person under the age of 18″
This means that there must have been penetration of the vagina by the accused person either with his penis, hand or mouth.
What is Penetration?
Black’s Law Dictionary defines Penetration as the entry of the penis or some other part of the body, or a foreign object into the vagina or other bodily orifice.
Furthermore, in Adenekan v. State of Lagos (Supra), the court held that the evidence of use by the appellant of his hand and mouth in the vagina (wee-wee) of the victim qualifies as evidence of penetration for the offence he was convicted.
In Rabiu v. State (2004) LPELR-7382, penetration, however slight is sufficient and it is not necessary to prove injury on the rupture of the hymens to constitute the crime of rape.
Can a Child Testify in Court for the Offence of Defilement?
Yes! Nevertheless, child evidence requires corroboration. It is worthy to note that the proof of offence of defilement of a child largely depends on the primary evidence of the two people involved, namely, the victim and the alleged offender.
The reason is because it is an offence usually and ordinarily committed in secret. See Lucky v. State (2016) 13 NWLR (Pt. 1528) 128
Thus, it follows then that the victim who is a child is a vital witness. A vital witness is one whose evidence is necessary and will establish an issue of fact. In fact, the evidence of a vital witness is indispensable and failure to call a vital witness is fatal to the case of the prosecution. Ochiba v. State (2011) 17 NWLR (Pt.1277) 663.
The child victim becomes a competent witness if she can
- understand the the duty of speaking the truth
- can convince them court that she has sufficient intelligence. Sec 175 (1) of the Evidence Act.