Zeal Akaraiwe
Two Legal Fictions That May Have Outlived Their Usefulness
Introduction
Law is the architecture of order in society as it tempers power, curates behaviour and guides civilisation. Yet, for all its reverence and ritual, the law must evolve or risk becoming a relic. In our era of mass information, increased agency and shifting norms, we must pause, un-wig our heads and reflect: do our legal maxims still serve their intended purpose? Or has the lack of conscious evolution allowed it become an unwilling partner in the abuse and perversion of justice
Two time worn principles, venerated but increasingly problematic, demand this scrutiny to illustrate some of the areas that the desired evolution of thought and principle may be lacking:
1 The paradox of consent in rape cases or better put, the burden of proving the non-existence of consent and
2 The doctrine that “ignorance of the law is no excuse” (ignorantia juris non excusat).
Let us explore how these legal fictions may frustrate justice in modern society and why reform is not rebellion but renewal.
Part I: Rape, Consent and the Impossible Negative
Every criminal trial rests on two fundamental tenets and principles that are the bedrock of justice:
• Presumption of innocence aka “innocent until proven guilty”;
• Burden of proof on the accuser aka “he who alleges must prove”
But when applied to rape cases, especially those hinging solely on consent (or the lack of), they create an evidentiary paradox. These tenets have been, and still are, crucially foundational in the existence of jurisprudence and justice, but the contradiction they pose in cases of rape seem to have escaped the scrutiny of senses.
Imagine a case:
• The complainant says: “I did not consent.”
• The defendant says: “We had consensual sex.”
What follows is not an ordinary adjudication of facts, but an inquiry into a subjective claim of experience: consent! Unwitnessed, unrecorded and often unspoken.
The law demands that the complainant prove a negative: that consent never existed. In most criminal offences, the prohibited act is tangible such as stolen property, a weapon, a corpse. But here, what’s absent, that must yet be proven, is the crime: the absence of consent.
The burden of proof remains on the complainant to demonstrate the non-existence of consent, a task akin to proving the absence of a shadow in a room already dark.
Even where there is no corroborative evidence, no CCTV, no text saying “no”, the law still expects a degree of certainty to surpass “all reasonable doubt”. Yet trauma and culture often silence victims, delays reporting and obscures memory. The assumption that victims can always meet this burden ignores the psychological realities of sexual violence.
Thus emerges a legal Gordian knot: requiring proof of something that did not happen; Proving the non-existence to a level that rises above raising a reasonable doubt! But yet, it is well accepted in the legal community that proving a negative is both logically and legally perilous.
Should we therefore not consider the reasonableness of shifting the burden?
Some jurisdictions now require affirmative consent—yes means yes—not mere absence of resistance. Could we not consider that where an accused initiates sexual activity, the evidential burden to show consent was given (not simply assumed) should shift?
This is not an abandonment of justice but a necessary recalibration. We, as humans, once deemed marital rape legally impossible, Yet we evolved. We can again.
Part II: Ignorance Is No Excuse—Except When It Probably Should Be
The doctrine ignorantia juris non excusat presumes a citizen’s omniscience: that every person knows all the law at all times.
In a society with few laws, universal civic education and clear statutes, perhaps this was fair. But today?
Consider Lagos State as an example. A citizen, eager to be law-abiding, seeks to download all state laws but no free repository exists. None!! He goes to the judiciary office and is told that the printed laws cost N50,000 which, at the time, was nearly twice the monthly minimum wage.
Unable to afford the law, he walks home. The police then stop him for “loitering” and he is locked up overnight and then charged to court the next day – his family unaware of his “abduction”. In court, his defense is as simple as it should be: “I didn’t know it was illegal”. The prosecution thunders: “Ignorance is no excuse.”
He is sentenced to six months with the option of a N100,000 fine.
Upon release, I’ll let you hazard a guess as to where the judicial and correctional systems would have left him: as a more law-abiding citizen? Or a bitter man failed by the system?
Given the poverty levels in the country, lack of enforced universal basic education, the lacadasical attitude of government agencies to proactively educate citizens and the opacity of Nigerian laws in general, especially at subnational levels, this doctrine becomes punitive rather than protective. In more than necessary incidences, laws are often hidden in obscure gazettes, embedded in unrelated bills or amended silently: and in any case, hardly ever publicly available in an understandable language for the less than learned public.
Estimated active statutes in Nigeria, federal, state, local and subsidiary, range conservatively between 250,000 and 500,000. Even legal practitioners struggle to keep pace as evidenced by the grades of the Law departments of universities and the Nigerian Law school.
The law, if it is a covenant between the state and citizen, must be accessible, intelligible and reasonable. Otherwise, it ceases to be law and becomes entrapment.
Embracing nuance becomes synonymous with embracing wisdom and justice:
• When laws are not publicly available;
• When the conduct was neither harmful nor clearly proscribed;
• When ignorance was genuinely unavoidable
Then perhaps, just perhaps, ignorance should be excusable by shifting the burden of proof to the state to demonstrate that all avenues to eradicate ignorance were taken and the accused actively avoided knowledge of the law.
Precedents and Perspectives
While “silence is golden” may apply in specific factual or contractual circumstances, it’s not a blanket legal rule. In Nigeria, silence to a clear request may imply consent under contract or estoppel principles. But merely staying silent, absent duty or context, does not form consent.
Though very limited, it is not non-existent that Nigerian courts have explored these grey areas:
• In UHENIBE v. Parkes (2014), the Court of Appeal affirmed that silence in contractual dealings may amount to consent, holding: “It is a trite principle of
Law that silence signifies consent.”
• In Idi v. State (2020), the Nigerian Supreme Court accepted that corroboration is not required to sustain a rape conviction, showing a softening of evidentiary rigidity.
• In Cheek v. United States (1991), the U.S. Supreme Court held that a good-faith misunderstanding of tax law could negate wilfulness, subtly undermining the ignorance principle.
Conclusion: The Case for Evolution
Legal principles must be strong but not ossified. To question them is not to weaken the law, but to strengthen its relevance in the dispensing of justice.
• The evidentiary standard in rape cases must reflect the trauma, asymmetry and silence embedded in such offences.
• The ignorance doctrine must be qualified where the state has failed in its duty to make laws accessible, known and understood.
The legal profession need not fear introspection. The law survived trial by ordeal, the abolition of slavery, the rejection of marital rape exemptions and universal suffrage. It will therefore summon the strength to survive clarity, empathy and reform.
If the law is a jealous mistress, let her not be vengeful for no cause and let her not become an avenue for lazy and malicious law enforcement to entrap and extort citizens. Let her be just.
And if she must still be blind, she does not also have to be tone-deaf; let her at least have good ears.
This article is intended to provoke dialogue, not disobedience. The legal community must begin to ask whether some of our cherished doctrines still serve justice or simply serve the fear of change.
• Akaraiwe is learned but non-legal member of neither the bench nor bar
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