Marital rape: Is it a crime or a conjugal right?

Kampala

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.

Divided opinion
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.

Rare cases
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.

Health workers at Mulago hospital say they have registered hundreds of cases of women raped by their husbands immediately after delivery. Even for those who may understand that rape is rape even if it happens within a marriage, there is the matter of marital rape being one of the harder cases to prove. “It takes place in the privacy of a bedroom and proving it happened may be difficult,” concedes Ms Namabidde.

Some women are forced to have sex when they are not in good health. Some have ended up losing their lives and others disabled. Others are forced to have sex when they have just delivered and this is what we want to discourage,” said Ms Mariam Namayanja (Gomba Woman MP).

Mr Ssebunya Kasule (Kyaddondo North), one of the male members co-opted in UWOPA, says some men are rough during sexual intercourse. “Such men deserve stiffer punishments because they behave inhumanely,” says Mr Kasule.

UWOPA chairperson Betty Amongi, says they shall agree with the government to delete some of the grounds for denying a spouse sex. “We shall agree to delete the ground on denying the spouse sex as a result of psychological injury or harm. Also, we shall clearly define what poor health is,” says Ms Amongi. Some legislators are opposed to the clause, arguing that it will be abused by their wives to deny them sex.

Culture clash
One of the biggest obstacles in recognising marital rape as an offence is the nature of Ugandan society. Young girls are brought up with the notion of the husband being the final person in any decision making in the house and who has absolute right over his wife. Society does not recognise non-consensual sex in marriage to be a crime against the woman. And a man forcing himself on his wife is seen as claiming his conjugal rights.

Proponents of the Bill say that marital rape is a more dangerous form of sexual violence. A rape is normally a one-time occurrence, but marital rape allows for the victim to be raped over and over again. And the perpetrator here is not a stranger but the husband.

Mr Cornelius Henry Mukiibi, an advocate and a lecturer in Criminal Law at Nkumba University, thinks not only must a whole lot of evidence to support the oral statement be presented to prove the use of force and absence of consent in marital cases if it were criminalised, but it would also be a tough job to distinguish between genuine cases and those where disgruntled wives are trying to settle scores.

“Some of the evidence of force would be torn garments, bruises and scratches, a medical report and evidence of STD contracted during forced encounter. Now imagine a case where the wife sleeps unclothed,” Mr Mukiibi says.

The legal hurdles
According to Mr Mukiibi, if the bill goes through and one wanted to prove marital rape, they would have to present evidence that shows the sexual act was carried out without their consent to support the oral statement.
“Anything that makes it evident that you did not consent, for example bruises,” he says.

Medical reports, torn garments may also serve as evidence. WomensLaw.org, says 7.7 per cent of women will be sexually assaulted by an intimate partner in their lifetime. Of those, only a few will report, if the situation in Uganda is anything to go by.

Even in cases where a woman has evidence that can pin the spouse there is the factor of fear to report. A fact that is true of all rape cases. “Only a few brave women can come out and speak about the trauma, or their ordeal. It is happening to Ugandan women but we only get to know of a few incidences,” says Namabidde.

She also notes that marital rape is likely to happen when marriages are breaking down. “We tend to focus on cases like murders or other forms of violence when marriages turn sour. Between the day of marriage and the bitter end, there could have been several rapes and other events you never hear about, that is why in the Bill we try to list specific instances which can be termed as marital rape,” she explains.

Many countries recognise rape as a criminal offence but have no provision to protect women against marital rape. India for example which just passed the death sentence for rapists whose victims die, rejected marital rape as a criminal offence. Closer to home, Kenya which according to a 2008/2009 demographic study has 13 per cent of women admitting to rape by their spouses recognises rape as a criminal offence but has no specific provision for marital rape.

“In other jurisdictions, if a wife withdraws consent and the spouse goes ahead to have sex with her, that is termed as rape,” says Mukiibi. “They bring into account the individual rights bit. That just because someone is your wife does not mean they have no right to say no,” he says.

It is interesting to note that even in developed countries, criminalization of marital rape is relatively new. The first case where a husband was charged with raping his wife in the USA happened in the 1970s while England only criminalised it in 1991. The marriage Bill which, among other things, seeks to criminalise marital rape, is still up for debate in Parliament.

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