By Cindy Kimere
“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
The words above were expressed by Lord Matthew Hale in 1736 and reflected the long-standing common-law disposition on the subject of marital rape. This essentially gave a spouse the freedom to perform undesirable sexual acts against his/her counterpart, implying the use of marriage as an exemption for rape. Such a position goes hand in hand with the classical myth that rape involves an act of sexual violation carried out by an unfamiliar offender.
Defining Terms
For one to be held liable for committing an act of rape under Section 3 of the Sexual Offences Act (Kenya) there must be unlawful penetration, resulting from a lack of consent, which is obtained through means of force, intimidation or threats. Marital rape can be defined as sexual penetration performed with a lack of consent and perpetuated by one’s spouse, which is often accompanied by physical or emotional abuse.
The most common type of marital rape is known as sadistic or obsessive rape and involves physical acts of torture and bodily harm. Another type of marital rape is called force-only rape, where spouses do not necessarily batter their counterpart but use ‘only the amount of force necessary’ to coerce their partner. This usually involves verbal pressure.
Perhaps the greatest uncertainty when it comes to this issue is the blurred line between conjugal rights and marital rape. Conjugal rights are sexual privileges accorded to individuals in a marriage. In Kenya, the Marriage Act, sets denial of conjugal rights as a ground for divorce. The most notable contrast between the two, however, is the lack of consent and the use of physical force or emotional abuse to perpetrate the act. As we shall see, marriage should not act as a license for what ought to be a crime.
Parliament’s Blunder
Many African states have failed to expressly criminalise marital rape and for a time, shortly before 2004, Kenya looked like it would no longer be among them. The law relating to sexual offences here is brought together under the Sexual Offences Act, 2006 (herein the Act). The Act is often praised for its comprehensiveness and as a milestone in the fight against sexual violence.
Unfortunately, the legislation carries a glaring handicap, Section 43 (5), which exempts marital rape from the scope of rape. This change was made during the run up to the enactment of the Act. As the Bill was in its second reading, members of parliament moved to exclude marital rape through Section 43 (5); citing, among other things, payment of dowry (implying property) and that marital rape could be abused to the detriment of the husband.
It is undeniable that marital rape is a sexual violation that occurs against both husbands and wives. Nonetheless, it is irrefutable also that the heinous act is more frequently perpetrated by husbands against their wives. Plainly read, Section 43 (5) gives the impression of being gender neutral but an analysis of the legal provision, its context and the motivations behind it, mentioned, indicates discrimination against women.
Marital rape as a violation of fundamental rights
It is estimated that 10 to 14% of women are sexually assaulted by their spouses. However, marital rape remains one of the most undisclosed crimes and continues to receive little attention from the legal system as many people still fail to understand how a husband can rape his wife.
One of the main reasons for this can be traced back to cultural and social perspectives that create a power disparity between men and women. This relates to how men and women are socialised; the presumption arises (as is seen in the conversations by Hale and parliament highlighted above) that a wife's body is owned by her husband. As a result, some men seek to prove their masculinity by dominating a woman's body. This perspective fails to take into account the woman's individual rights and dignity.
The promulgation of the 2010 Constitution restored hope for a better Kenya. This living document acts as a guide towards a better future with equality as its foundation. It seeks to be a bridge from a past of social injustice, to a better future where individuals are not discriminated against due to factors such as sex, religion and age.
This stance more closely reflects the current common-law position on marital rape as expounded in Regina v R. [1992];
“The common law was, however, capable of evolving in the light of changing social and cultural developments. Hale’s proposition (propounded in 1736 to the effect that a husband cannot be guilty of raping his wife) reflected the state of affairs in those respects as at the time it was enunciated. Since then, the status of women and particularly married women has changed out of all recognition… one of the most important changes was that marriage in modern times regarded as a partnership of equals and no longer one in which the wife was to be the subservient chattels of the husband… on the grounds of principle there was no good reason why the whole proposition of marital exemption to rape should not be held inapplicable in modern time.”
In spite of this, the existence of Section 43(5) of the Sexual Offences Act, with the motivations thereunder, continues to act as a monument to the exemption of sexual violations in marriage. This leaves us uncertain as to whether the provision, broadly considered, acts as a bridge to achieving equality in this area.
Sexual penetration without consent amounts to rape irrespective of who the perpetrator is. Rape is an act that violates and infringes on fundamental rights guaranteed to all in the bill of rights. The Constitution accords one the right to human dignity, the right to equality and freedom from discrimination and the right to equal treatment before the law.
Although criminalisation of marital rape in Kenya will not hinder individuals from sexually violating their spouses nor will it automatically change how boys and girls are socialised. It will act as a clear statement that spouses need be held accountable for their actions and will guide Kenya to a more equal future. Criminalisation of this act will uphold a broad range of fundamental values and principles held in the Constitution.
Cindy is a 4th year student at Strathmore Law School. She works in the Human Rights Unit of the Strathmore Law Clinic.
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