We tend to have this pattern of attempting to keep things under wraps by refusing to acknowledge an existing problem until it finally blows up in our face.
Think of a leaking tap for instance. Now, it usually starts really small; something minor that could be taken care of with a duck tape or a piece of chewing gum. But then, these fixes do not last for so long. If not replaced by something more permanent, soon, the pressure increases, the tap bursts and boom; your kitchen turns into a swimming pool. Then you have it much worse than when you started.
Like quick fixes for leaking taps, answers like "babies come from the baby store" only satisfy a child's curiosity for so long. If not replaced by healthy sexual ethics carefully built in by the parents through ongoing age appropriate conversations on sexuality; a child's sexual orientation ends up shaped by the confused media, friends or even the school system.
The end result is usually always disastrous and a classical example can be seen in the child pornography video that broke the internet recently. These days, children have so much access to information that they cannot handle, hence instead of getting a healthy perspective from their parents, many children, at a really young age, are exposed to concepts like nudity, objectification as well as violent and degrading encounters which now form the basis of their sexual orientation.
The law is particularly protective of children. Hence, various laws exist to protect children from being exploited; particularly sexually. The law can however only do so much to protect children when they themselves become their own "exploiters".
The recent child pornography video that recently broke the internet has not only raised a number legal issues, it has also introduced a new dimension to the issue of unlawful carnal knowledge in Nigeria.
From the Criminal Code to the Penal Code, Violence Against Persons (Prohibition) Act, the Child’s Rights Act and a number of other statutes, Nigeria can be said to have quite a broad legislation on the subject of rape. These laws not only address rape by penetration, they also accommodate the contemporary means by which the crime is committed.
Issues such as the age of consent and the capacity to have carnal knowledge are equally addressed. According to Section 30 of the Criminal Code anyone below the age of 12 is incapable of unlawful carnal knowledge. Section 30 of the Penal Code on the other hand embraces the possibility of a child under 12 but above 7 having unlawful carnal knowledge as long as it is proven that he is sufficiently mature to understand the nature and consequences of his acts.
Similarly, from the provisions of Section 31 of the Child’s Right Act, it can be deduced that engaging in sexual relations with someone under the age of consent (which is 18 years) amounts to rape as a child is incapable of giving consent. As such, having canal knowledge of a child below 18 years amounts to statutory rape.
Although these provisions are pretty broad, they do not address the issue of mutual sexual activities between minors. Some other countries, like the United states, have adopted what is known as "Romeo and Julliet" or "close in age" law which exempts situations where "perpetrator" and "victim" are willing participants who are both minors but are close in age from the general concept of statutory rape.
As such, with only traditional rape lawswhose application will be absurd as the ambiguity of the Nigerian law on sexually activities between minors does not take away the fact that the extension of the existing laws to include consensual sexual activities between minors was clearly not the intention of the drafters of the law.
Let us not also forget that Section 38(8) of the Constitution of the Federal Republic of Nigeria prohibits prosecution for an act that was not a crime when it was committed (which is the case because the law does not incriminate consensual sexual activities between minors).
Apart from rape, there is also a cybercrime dimension to this incidence as the video in question was disseminated using the Internet. Thankfully, the Cybercrimes Act is not silent on this issue. According to the Act, anyone who produces, distributes, receives, or possesses an image of child pornography is liable to a sentence of 14 years imprisonment.
The tort of negligence can also come to play in this instance. This is because overtime, the law has recognized the existence of a duty of care between the school and students of the school. Seeing that the incidence occurred while the children were under the school's supervision, negligence could be a possible cause of action.
Now, no one expects an adult who is responsible for the welfare of a child to keep them under lock and key or have a leach on them. There is however a reasonable standard of care expected. Whether or not the standard was met in any instance is purely a question of fact.
Speaking of responsibilities, the government enjoys some form of control over the school in question regardless of the fact that it is privately owned. This implies that if necessary, the government can impose sanctions on the school.
In the world that we live in, it is pretty difficult to adequately protect the innocence of children. With so much access to information, keeping a child safe would mean equipping them with enough information to detect and to run away from harmful content and although it takes a village, primary responsibility still falls on parents.
Damilare at Oyemaja Law.