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The Push to Get Every African Country to Criminalize Marital Rape

The U.N.’s Declaration on the Elimination of Violence against Women states that ‘violence against women shall be understood to encompass … marital rape.’ But spousal rape is still not recognized in the laws of more than half the countries in Africa.

Written by Rumbi Chakamba Published on Read time Approx. 4 minutes
Only 14 countries in Africa have laws that specifically criminalize marital rape. Activists trying to get the rest of Africa to follow suit first have to fight deeply ingrained cultural attitudes toward sex in marriage. AP/Denis Farrell

According to the World Health Organization’s 2006 study on domestic violence, the most common form of violence against women is perpetrated by their intimate partners. But in many parts of Africa, the rape of a woman by her husband isn’t considered a crime.

In several countries, including Senegal and Botswana, there is no legislation dealing with the issue of spousal or marital rape, while in Nigeria, Ethiopia, Kenya and other countries, the law protects conjugal rights, stating that rape can only occur outside of wedlock. While governments continue to turn a blind eye to marital rape, say activists, many women remain vulnerable to sustained abuse as their country’s laws fail to protect them.

The 2014 Kenya Demographic and Health Survey shows that 8 percent of women surveyed said they had experienced sexual violence from their husbands within the past year, while 14 percent reporting having experienced sexual violence from their partners at least once in their lifetime.

A policy brief on marital rape produced by the African Population Health Research Center for the Kenyan Parliament in 2010 highlighted the stories of various victims in a bid to conscientize legislators on the need for policy change. One was the story of 28-year-old Sally (not her real name), who is a client of the Women’s Rights Awareness Programme, an NGO that provides shelter, counseling and practical and legal advice to survivors of gender-based violence in Nairobi. She reported that she resisted having sex with her late husband because he “had signs” of a sexually transmitted disease, but he would force her. After her husband’s death, Sally went to a clinic to get tested and found out she was HIV-positive.

According to the World Bank Research on Women, Business and Law, only 14 countries in Africa have legislation in place that specifically criminalizes marital rape. While it is possible for women to file complaints in most of the countries that do not specifically criminalize rape, in eight states husbands are exempt from facing criminal penalties for forcing their wives to have sex with them.

Until recently, Malawi was one of the African states where the law was silent on marital rape. Activists in the country have long been fighting to have the act recognized as a crime. In 2001, rights group Women in Law in Southern Africa-Malawi (WILSA-Malawi) drafted a bill on marital rape which sparked fierce public debate. But the debate was eventually shut down by a judge who said such a law would go against one of the basic foundations of marriage. “By entering into marriage, each spouse is taken to have consented to sexual intercourse with the other spouse during the existence of his or her marriage,” Supreme Court Judge Duncan Tambala told reporters at the time.

Now, after 15 years of campaigning, WILSA Malawi National Coordinator Mzati Mbeko says the group can claim a small victory with the introduction of the Marriage, Divorce and Family Relations Bill 2015. While the bill reaffirms conjugal rights in marriage, it also spells out exceptions where a spouse may refuse to have sex “on reasonable grounds.” According to the bill, those grounds include poor health, recovery after giving birth, recovery after surgery and “if he/she has reasonable fear that engaging in sexual intercourse is likely to cause physical or psychological harm to either spouse.”

The bill also states that a husband can be convicted of marital rape for nonconsensual sex if he and his wife are separated at the time. Though Mbeko touts the bill as a much-needed first step, he is also quick to say that it does not do nearly enough to address the full scale of the problem. “We can now push full throttle for the recognition of marital rape within the law as it [marital rape] is a form of gender-based violence,” he says. “With no law, it will continue and women will continue to suffer.”

But getting lawmakers to take a stronger stand against non-consensual sex within marriage means overcoming deeply ingrained patriarchal and cultural beliefs. Annie Banda, a gender activist in Malawi who has been lobbying for the country to pass a marital rape law, says that in private discussions with various parliamentarians, she has been told that marital rape is simply not possible. “When you are outside the meeting rooms, they will tell you there is no way that a man can rape his own wife,” she says.

In Botswana, too, the attitude toward sex in marriage holds that women give up their individual rights once they enter wedlock. Speaking on condition of anonymity, a senior police officer in the Botswana Police Service confirms that he and his colleagues do not deal with marital rape cases. “We as the police cannot police in the bedroom,” he says. “How can you refuse to be with your own husband when you belong to him and expect us to intervene?”

Even in places where laws against marital rape exist, cultural beliefs make them difficult to enforce. South Africa was one of the first African countries to legislate against marital rape, in 1993, but research reveals that patriarchal attitudes still influence how the courts handle cases of marital rape. In its 2012 report on marital rape in South Africa, the Open Society Initiative for Southern Africa documents one case where a judge dismissed marital rape charges because the husband’s “desire to make love to his wife must have overwhelmed him, hence his somewhat violent behavior.” In another case, the complainant was abducted and raped by her husband, who thought it was his right as she had not reimbursed him the lobolo (bride price) he had paid for her. In his ruling, the judge said that the defendant’s actions “though totally unacceptable in law … were shaped and molded by the norms, beliefs and customary practices by which he lived his life.”

Gender activist Annie Banda predicts a long road ahead in the fight to eradicate marital rape. “Marital rape is there, but people do not want to accept it,” she says. “The victims are complaining, but law enforcers still do not believe it is possible for a man to rape his wife, because of our culture.”

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