CONSENT WITHIN MARRIAGE: AUTONOMY, CULTURE, AND THE JURISPRUDENCE OF MARITAL RAPE IN NIGERIA

Abstract

Marriage is among the few institutions thought to carry an enduring expectation of sexual intimacy, and law has long given that expectation force. The modern constitutional order begins elsewhere, from the principle that authority over one’s own body belongs to the person and is not surrendered by entering a status. Marriage creates genuine obligations, autonomy limits what any obligation can demand, and consent is not a fixed grant but a dynamic and revocable act. Nigerian law sits uneasily across this tension. Its inherited Criminal Code and Penal Code preserve a marital exemption, while the Violence Against Persons (Prohibition) Act 2015 defines rape by consent and asserts its own supremacy, leaving a single legal system internally inconsistent and unresolved. Drawing on doctrinal analysis, moral and African philosophy, comparative constitutional law, and international human rights jurisprudence, the article argues that neither the philosophy of marriage nor the resources of African thought support the exemption, and that Nigerian law already contains the materials for criminalisation but lacks the account of consent needed to activate them. It supplies that account, holding that consent within marriage is continuous, revocable, and incapable of being surrendered, that marriage creates obligation but never ownership, and that the law, read in its best light, already requires as much.