Joint Charge against Defendants in Rape Cases - A Legal Impossibility?

Abstract

The successful prosecution of offences, including sexual offences like rape, is sometimes dependent on the framing of the charge or information by the Prosecutor. This takes additional complexity where the offence is committed by two or more suspects. In framing the charge, should the defendants be charged in one count or several counts for the rape of the victim but in the same charge sheet or information? And where two or more persons set out to commit rape but only one of them penetrated the prosecutrix, can all the defendants be charged in one count with rape? Or is it only the defendant who penetrated the victim that can be charged with rape whilst others are charged in different count with kindred offences like sexual assault or attempt to commit rape? This paper examines the rules of drafting of charges within the context of sections 7 of the Criminal Code Act and similar provisions in the Penal Code in relation to the vital ingredients of rape and argues that where two or more suspects are accused of actively participating in the commission of rape in jurisdictions where the Criminal Code Act applies, they should be charged jointly in the same count and in the same charge sheet or information. Whereas in jurisdictions where the Penal Code applies, each person who penetrated the victim should be charged with rape whilst others should be charged with abetting the rape in a separate count but in the same charge sheet. Adopting a doctrinal methodology, a critical examination of the relevant authorities in Nigeria and other jurisdictions will be undertaken. It will be recommended that where more than one defendant is charged in a count for rape, this should not vitiate the charge as such charge is actually technically valid.