"Unrecognized and Unprotected: Bridging the Legal Gap in Addressing Marital Rape" by Ruth Muigai

Marital rape refers to sexual intercourse without the consent of one's spouse. The issue of marital rape is a complex and controversial one, and it has been the subject of debate and legal analysis in many jurisdictions. In this article, we will discuss the legal analysis of marital rape and the laws that govern it.

Are conjugal rights absolute? Historically, marital rape was not recognized as a crime in many jurisdictions, and it was considered to be part of the conjugal rights of a husband. The idea behind this concept was that a woman was considered to be the property of her husband, and he had the right to sexual intercourse with her whenever he wished. However, this idea has been challenged in recent times, and many countries have recognized marital rape as a crime.

In the United States, marital rape was not recognized as a crime until the 1970s. In 1975, the Nebraska Supreme Court was the first to recognize that a husband could be charged with the rape of his wife. However, it was not until 1993 that all 50 states in the US recognized marital rape as a crime.

In Canada, marital rape was recognized as a crime in 1983, and it is now considered to be a form of sexual assault. The Criminal Code of Canada defines sexual assault as any sexual contact without the consent of the other person.

In India, marital rape is still not recognized as a crime. In the Indian Penal Code (IPC) Section 375 of the Indian Penal Code (IPC), rape includes all forms of sexual assault involving non-consensual intercourse with a woman. However, under Exception 2 to Section 375 unwilling sexual intercourse between a husband and a wife over 15 years of age does not constitute “rape” and thus prevents such acts from prosecution. However, there have been several attempts to change this law, and the issue has been the subject of debate and discussion.

In Iran, rape is illegal and subject to strict penalties, including death, but it remained a problem. The law considers sex within marriage consensual by definition (Penal Code art. 221) and, therefore, does not address spousal rape, including in cases of forced marriage.

In Central Africa Republic,although rape is prohibited by the law, spousal rape is not explicitly criminalized. According to customary law, sexual intercourse within a marriage is considered consensual.

In Cameroon: The law does not make any specific provisions regarding spousal rape, but it also does not explicitly permit marital rape. Judges acknowledge the principle that husbands have disciplinary rights over their wives, even in cases where the wife refuses to engage in sexual relations. Additionally, it is commonly accepted that by getting married, a woman consents to sexual intercourse with her husband whenever he desires.

In Eritrea, Article 307 of the Penal Code specifically states that marital rape is not a criminal offence, except in cases where the spouses are not living together.

In Malawi, although the definition of rape under Section 132 of the Penal Code does not provide any exception for marital rape, the presumption of a wife's consent under Customary Law was upheld by the High Court of Malawi in the case of R.vs. Mwasomola, 4 ALR(Mal) 572. However, the Marriage, Divorce, and Family Relations Act of 2015 has now explicitly introduced the concept of spousal rape, but it does not specify any particular penalties and is only applicable to legally separated spouses.

In Tanzania, Section 5 of the Sexual Offences (Special Provisions) Act of 1998 explicitly states that marital rape is not considered a criminal offense. This is based on the belief that husbands, having paid bride price, possess a legal entitlement to have unrestricted sexual access to their wives.

In Uganda, Section 123 of the Penal Code defines rape as the act of engaging in sexual intercourse with a woman or girl without her consent, and there are no exemptions for marital rape. However, under customary law, there is a presumption that a woman implicitly consents to sexual intercourse with her spouse during marriage. A Sexual Offences Bill that seeks to criminalize marital rape has been before the Parliament of Uganda since late 2018. Similar bills were previously rejected in 1970, 2003, and 2009.

In Democratic Republic of Congo, The legal definition of rape does not include spousal rape. Customary law holds that sex within marriage is consensual.

The legal analysis of marital rape is complex, and it involves several issues such as consent, coercion, and the nature of the marital relationship. Consent is a key issue in determining whether an act of sexual intercourse constitutes rape. In the case of marital rape, consent can be difficult to establish because of the nature of the marital relationship. It is often assumed that a wife has given her consent to sexual intercourse with her husband when she enters into a marriage. However, this assumption is flawed, and it fails to take into account the changing nature of the marital relationship.

Coercion is another issue that arises in the context of marital rape. Coercion can take many forms, and it can be difficult to prove. Coercion can be physical, emotional, or psychological, and it can be used to force a spouse to engage in sexual activity against their will.

The nature of the marital relationship is another factor that must be taken into account when considering the issue of marital rape. The marital relationship is based on trust and mutual respect, and it is intended to be a partnership between two equal partners. However, when one partner uses their power to coerce the other partner into sexual activity, the relationship is no longer based on mutual respect and trust.

In many East African countries, patriarchal norms and practices that place men in positions of power over women are deeply entrenched. These norms often support the belief that a husband has the right to sexual access to his wife's body at any time, regardless of her wishes or desires. As a result, women who are married in these cultures often face a great deal of pressure to submit to their husband's sexual advances, even if they are not willing.

One of the reasons that marital rape is so prevalent in East Africa is due to the lack of legal protections for women within marriage. In many countries, laws and policies that protect women from sexual violence often do not apply to spousal rape. For instance? in Kenya: Despite having laws against domestic violence, Kenyan law does not specifically criminalize marital rape. As a result, Kenyan women only have general legal protections against assault in cases of domestic violence, which is insufficient for protecting them from marital rape. The law requires witnesses or evidence of physical resistance, which can be difficult for victims of marital rape to provide as they often do not feel able to resist their husbands' advances due to fear of further violence or to protect their children from witnessing the abuse. The Sexual Offences Act was introduced in 2006 to address sexual violence and impose stricter penalties, but it explicitly excludes protection for married women from sexual violence within their relationships. Therefore, under Section 43.5 of the Sexual Offences Act, coercing someone into a sexual act through the use of force or threats of harm is not considered a criminal offence if the perpetrator is legally married to the victim. Additionally, many women who experience marital rape may not feel comfortable seeking legal remedies due to cultural stigmatization or lack of knowledge about their legal rights.

Furthermore, the societal and cultural attitudes towards marital rape contribute to the normalization and perpetuation of this form of gender-based violence. Women who speak out against marital rape are often blamed, shamed, or stigmatized, further preventing them from seeking help and support.

The prevalence of marital rape in East Africa has severe consequences for the physical, emotional, and mental health of women. It can lead to unwanted pregnancies, sexually transmitted infections, and other physical injuries. Moreover, the trauma and psychological impact of marital rape can last long after the initial assault, leading to depression, anxiety, and even post-traumatic stress disorder.

To combat the problem of marital rape in East Africa, there needs to be a concerted effort to change cultural norms and attitudes towards gender-based violence. This can include awareness-raising campaigns, education programs for both women and men, and stronger legal protections for women within marriage. Additionally, it is important to provide support and resources for women who have experienced marital rape, including access to legal aid, counseling, and medical services.

Marital rape has been the subject of many legal cases around the world, and the following are some examples of landmark cases that have helped to shape the legal landscape on this issue:

• R v R (1991) - This case involved a British man who was accused of raping his wife. The defendant argued that he could not be guilty of rape as he was married to the victim. However, the House of Lords, the highest court in the United Kingdom, rejected this argument and held that a husband could be guilty of raping his wife. This ruling was significant in establishing that marital rape is a crime and helped to change the law in other countries.
• State v Biggerstaff (1984) - This case involved an American man who was convicted of raping his wife. The defendant argued that he could not be guilty of rape as he was married to the victim. However, the court held that marriage did not imply that a wife had given irrevocable consent to sexual intercourse, and a husband could be convicted of raping his wife. This ruling helped to set a legal precedent in the United States for recognizing marital rape as a crime.
• State v. Jackson (1979)- This was the first case in the United States in which a man was convicted of raping his wife. The case took place in North Carolina, and the court ruled that a husband could be charged with rape if he used force or threats to have sex with his wife against her will.
• R v. R (1991): This case took place in the United Kingdom and involved a man who had been charged with raping his wife. The court ruled that the marital rape exemption, which had previously prevented husbands from being charged with rape, was unconstitutional.
• People v. Liberta (1984) -This case took place in New York, and the court ruled that a man could be charged with raping his wife even if she had previously consented to sex. The court also ruled that a husband could be charged with rape if he used force or threats to have sex with his wife against her will.
• Smt. T. Sareetha v. T. Venkata Subbaiah (1983) -This was a landmark case in India in which the court ruled that a husband could be charged with rape if he had sexual intercourse with his wife without her consent. The court also ruled that the marital rape exemption was unconstitutional.
• S v Jackson (2004) - This case involved a South African man who was charged with raping his estranged wife. The defendant argued that the act could not be classified as rape as they were still married at the time of the incident. However, the court held that marital status was not relevant in determining whether or not an act constituted rape, and a husband could be convicted of raping his wife. This ruling helped to establish that marital rape was a criminal offense in South Africa.
• Tiarney v State of Connecticut (1986) - This case involved an American man who was convicted of raping his wife. The defendant argued that the state's rape law was unconstitutional as it violated his right to privacy and due process. However, the court held that the state's interest in protecting women from sexual violence outweighed any privacy concerns, and the law was constitutional. This ruling helped to establish that marital rape was not protected by the right to privacy.
• R v Clarence (1988) - This case answered the question whether a husband who had sex with his wife when he knew he had gonorrhoea was guilty of rape. The husband was convicted of inflicting grievous bodily harm but his conviction was quashed on appeal.
• Independent Thought v. Union of India (2017). The case was brought before the Supreme Court of India and dealt with the issue of whether a husband can be charged with rape for having sexual intercourse with his wife who is between the ages of 15 and 18. The Supreme Court, in its judgment, held that sexual intercourse with a wife who is between the ages of 15 and 18, even if she is married, would be considered rape. The court also held that the exception to rape in the Indian Penal Code, which allows for sexual intercourse between a husband and wife if the wife is above 15 years of age, is unconstitutional. While the court did not explicitly recognize marital rape as a criminal offense, the judgment was seen as a step towards recognizing the issue of sexual violence within marriage in India.
• Rebeca Gyumi v. Attorney General (2016), which was heard by the High Court of Tanzania. In this case, the petitioner challenged the constitutionality of several laws that allowed for child marriage, arguing that they violated the rights of girls and women, including their right to education, health, and freedom from violence, including marital rape. The court held that the laws were unconstitutional and ordered the government to take steps to end child marriage. While the court did not specifically address the issue of marital rape, the ruling was seen as a significant step towards recognizing gender-based violence and discrimination in Tanzania. In addition, the ruling was widely praised by women's rights advocates and activists, who saw it as a victory for the rights of girls and women.?

In conclusion, the issue of marital rape is a serious and pressing concern that demands urgent attention and action from governments, policymakers, and civil society organizations. Despite significant progress in many parts of the world in recognizing gender-based violence and discrimination, the fact remains that marital rape is still not recognized as a criminal offense in many countries, including those in Africa.

This legal gap has significant implications for women's rights and well-being, leaving them unrecognized and unprotected from the harm of sexual violence within their own homes. Women who experience marital rape often face significant barriers in accessing justice and support services, including social stigma, fear of reprisals, and a lack of resources.

It is imperative that governments take immediate action to address this issue by criminalizing marital rape and providing better support for survivors of gender-based violence. This includes investing in education and awareness-raising campaigns to help change social attitudes towards women and violence, as well as providing better access to legal and support services for victims of gender-based violence.

In addition, it is crucial that civil society organizations continue to advocate for the recognition of marital rape as a criminal offense and push for legal reforms that would provide better protection for women. This includes supporting survivors of gender-based violence and empowering them to speak out about their experiences.

Ultimately, recognizing and addressing the issue of marital rape is essential to advancing gender equality and promoting human rights for all. By bridging the legal gap in addressing marital rape, we can work towards creating a safer, more just, and more equitable world for women and girls.

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