Marital rape: Is it a crime or a conjugal right?
Posted Saturday, March 16 2013 at 02:00
The Marriage and Divorce Bill which, among other things, provides for the different types of recognised marriages in Uganda, marital rights and duties, and recognition of cohabitation in relation to property rights, has seen tempers flare in Parliament and sections of the media. Saturday Monitor dissects the clause on marital rape.
An ongoing discussion on the proposed law on marital rape or rape within marriage has triggered debate and protest in the last three weeks among different sections of the society on sexuality in the marriage institution.
While some men are arguing that preventing forced sex with their wives is not part of African values, women have thrown their weight behind the bill, arguing that the inclusion of this crime in the law books would go a long way in reducing abuse of women in marriages.
Religious leaders are calling for a thorough public debate before the passing of the Bill. If passed into law, the clause on marital rape could see men who are accused of marital rape being slapped with five-year prison terms as well as fines not exceeding Shs2.5 million.
WomensLaw.org defines marital rape, also called spousal rape, as sexual assault by an intimate partner. Others define it as non-consensual sex in which the perpetrator is the victim’s spouse. As such, it is a form of partner rape, of domestic violence, and of sexual abuse.
Though there are international conventions that criminalise it, marital rape is still widely condoned or ignored by law and accepted as a spouse’s prerogative. For many Ugandans, it could mean anything, from yet another violation of human rights to a bedroom matter, that should remain private. Some see it as a contentious issue that just came with the marriage Bill and has nothing to do with them.
Take 63-year-old Halima’s comments for instance. While she does not believe in domestic violence, she also does not see how sex with one’s own wife can be rape. “Can anyone call you a thief for eating your food?” She asks. Even with the explanation of a husband forcing himself upon a probably sick wife, she still does not see it as rape. “A wife is obliged to look after her husband’s needs. In the bedroom and out,” she adds.
Mr Timothy Mutyaba, a married father of two, finds it difficult to understand the marital rape concept. “Having sex with your wife is no crime. Besides, it is only the two of you, so who decides it is rape?” He thinks that with the typical African upbringing where women are taught to be demure about sexual matters, it is upon a husband to “initiate”.
There seems to be general consensus that a man raping his wife is an alien concept which goes against cultural norms. In the few instances where someone concedes that rape can happen, they point out that the marriage must be marred by other problems like violence as a whole. “Maybe the man is cruel and violent generally, if he can force himself upon a woman who has just given birth, and that crime is covered under the Domestic Violence Act,” says John Mwanje, a 45-year-old trader.
Marital rape is mentioned under the 2010 Domestic Violence Act. It is also listed as one of the forms of domestic violence in the 1993 UN Declaration for the Elimination of Violence against Women (DEVAW) which Uganda ratifies.
“In fact, it is no new concept,” says Ms Sylvia Namabidde, the chairperson of National Women Ministers and Parliamentarians Uganda Chapter, which has been pushing for the passing of the Marriage and Divorce Bill in Parliament.
The 2010 Domestic Violence Act reads as follows: “Domestic violence constitutes any act of omission of a perpetrator which harms injures or endangers the health, safety, limb, or well-being whether, mental or physical of the victim or tends to do so and includes causing physical abuse, sexual abuse, emotional, verbal and psychological abuse.”
Ms Namabidde says even without the words, marital rape is covered under sexual abuse. “But this one takes place within a recognised marriage and is perpetrated by a spouse,” she adds.
Ms Julie Asiimwe, who has been married for four years, thinks it might be one of the rarer forms of violence. “I have not experienced it and I doubt I would know if any of my friends did. But I doubt it is common. He is your husband, you may let it happen without necessarily saying yes,” Ms Asiimwe says.
Her opinion seems to buy into the notion that marriage presumes consent. Those subscribing to this school of thought see any sexual act by a husband to his legally recognised wife as already consensual by virtue of her being his wife. “Is there any denying or consent there? You are in his house, in his bed. Whichever way he does it, you are there,” says one woman.
Another, in front of her 20-year-old daughter, says sex is the reason men marry and thus it is a wife’s duty to provide it. There are few or no statistical data to test the level of the crime in society. However, doctors and counsels say they have come across cases of marital rape.