A workmate recently asked me about marital rape and whether or not it was a crime to have non-consensual sex with one’s spouse. I gave him my polite opinion (a liberal opinion). Little did I know that one of our dear readers would inquire about the same this week!
Stella, a new mother is nursing labour wounds. Her husband, James, forces her to have sex two days after labour and her surgical stitches tear. She is referred to hospital for re-stitching.
Apollo threatens to take away his and his traditional wife Cathy’s children if she refuses to have sex with him. She gives in to his demands.
Amongi, a working wife returns home exhausted from a long business trip. Her ex-husband, Otti, accuses her of infidelity and forcefully has sex with her to prove she was not cheating on him.
Rita, in her monthly periods, hosts Thomas her student boyfriend for lunch. Rita’s faith does not allow her to have sexual relations while she is having her menstruation period, but Thomas threatens to leave her if she does not. She gives in.
The above are examples of incidents other jurisdictions have used to define marital rape. They seem alien to our jurisdiction but because they are incidents leading to non-consensual sexual relations, they have influenced how our legislators look at marital rape.
Rape per se
Rape is rape and is definitely a crime, regardless of the relationship between the victim and perpetrator.
Chapter XIV of the Penal Code Act (Cap 120) of Uganda talks about offences against morality among which rape is defined as:
‘Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, commits the felony capital offence) termed rape.’
The punishment for rape is death.
Given the above definition and punishment, marital rape has not been out rightly criminalized because of its unique classification. It has been shoved into domestic violence since it happens between intimate partners in some kind of legal sexual relationship and therefore makes it difficult to punish the perpetrator, leave alone sue him/her.
Note: This article includes the unfamiliar incidents of women perpetrators against male victims in the present sexual offence spheres.
In marital rape, the important issue to note is that the partner initiating the non-consensual sex is known to the victim; the parties are not strangers to each other. They are in some form of civil union: a marriage or conjugated (sexual) relationship.
Sex between spouses is often seen as a right, an obligation or a duty etc. because it is acceptable in a relationship as one of the uniting acts defining a conjugal relationship. However, it is good and ‘legitimate’ sex if it is consented to. Where force/coercion exists, then, regardless of its legality, that sexual relationship becomes offensive, especially to the victim.
Like rape, marital rape is not widely spoken about because of several reasons e.g.:
- The patriarchal society of our communities that allows men to dominate sexual relations over women (this does not disregard the reported and unreported incidents where women are the perpetrators of sexual violence against men);
- Insufficient evidence to prove sexual offences. Re-creating sexual crime scenes can be traumatizing, humiliating, shameful, difficult and tedious for the victim and the forensics;
- The aftermath of a marital rape incident: how does a victim and his/her perpetrator ‘reconcile’ after the shame of having his/her intimate partner forcefully perform a sexual act on him/her? Does the relationship continue? Should it continue, anyway?
Marriage versus Marital rape
The veil of marriage is no cover for coercion into sex (read, rape) although many alleged perpetrators do so.
Many spouses have their unique levels of intimacy. In marriage, it is assumed that each individual has a distinct personality with a right to consent to or reject anything, despite his/her marital status/expectations.
With consent from a willing adult partner, a sexual act is a fulfilled expectation. Without consent, that eventual sexual act can be evidence of rape: i.e., marital rape, since it is within the confines of an existing or previous marital relationship.
Manipulation, threats of violence, force/coercion, intoxication leading to non-consensual sex, holding a partner hostage for sex etc. are some of the situations courts use to assess whether or not rape occurred.
But because marriage in our jurisdiction is somewhat patriarchal, women cannot use those excuses to accuse their spouses of marital rape. Customs dictate that a married woman should not deny her husband sex and neither can she claim marital rape should the husband have sex with her without her consent.
In 1993, the UN Declaration for the Elimination of Violence against Women pronounced marital rape as a form of domestic violence. This provision was later incorporated in Uganda’s Domestic Violence Act of 2010 which provides under section 2 that:
‘Domestic violence constitutes any act or omission of a perpetrator which-
- Harms, injures or endangers the health, safety, life, 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 and economic abuse; and…
- Otherwise injures or causes harm, whether physical or mental, to the victim.’
Still under section 2, the Act describes what ‘sexual abuse’ is/ought to be. It says,
‘Sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of another person.’
Further, it provides that;
‘A victim means a person in a domestic relationship who directly or indirectly suffers threatened or actual domestic violence.’
On careful scrutiny of the ingredients of violence in marital environs, elements of harm, injury and coercion are present in marital rape. One can assume that this law covers the degree within which this rape occurs (in marriage or consensual relationships) but does not accommodate the exact crime of marital rape, per se. Legal persons can just assume and hope that the perpetrator is held accountable on a lesser charge.
Why classify marital rape under domestic violence?
Section 3 of the Domestic Violence Act talks about domestic relationships as settings where domestic violence is implied. Unlike rape that has many residential influences; marital rape cannot be domestic unless there is/was some form of cohabitation.
Therein, it specifies the nature of the relationship between the victim and perpetrator. It provides that;
- there has to be an existing or previous marriage union (a);
- family relation by kinship or consanguinity (b);
- victim and the perpetrator share or shared the same residence (c);
- victim is employed by the perpetrator as a domestic worker (d);
- victim employs the perpetrator and does or does not reside with the perpetrator (e); or
- The victim is or was in a relationship determined by the court to be a domestic relationship (f)’.
What opponents of Marriage and Divorce Bill argue is that since the Domestic Violence Act covers most of the above scenarios, a scenario where a spouse who demands sex from his/her partner and/or forcefully receives it should not be given its own mandate in a separate law. They are hesitant to declare a traditional notion of ‘wives cannot deny husbands sex’ or ‘a husband cannot rape his wife’ as criminal.
It is the mindset that has kept the Marriage and Divorce Bill a bill.
Looking at the punishments in the Domestic Violence Act, the Marriage and Divorce Bill definitely had to suffice to counter the punishment for rape under the Penal Code Act.
Under the previous Domestic Violence Act, section 6 (5) allows a local council court to hand down the following punishments:
- Apology to the victim;
- Community service;
- A fine not exceeding twenty five currency points (a currency point is normally equivalent to Ushs.20,000/=);
- Attachment and sale, or
- Any other order provided for under the Local Council Courts Act, 2006’.
The above punishments are contested. Since perpetrators are often intimate partners, enforcing these orders is tricky and almost impossible.
Not even the protection order against the perpetrator (sections 10, 11, 12, 13, 14, 15 &16) can be effective thus the importance of having its own law.
The Marriage and Divorce Bill (Uganda)
It seems that section 4 (prohibition of domestic violence) and section 5 (consent not a defence in domestic violence) of the Domestic Violence Act of 2010 were/are not enough provisions to hold a perpetrator liable under the offence of marital rape.
That is why in 2013, the Marriage and Divorce Bill whose controversial contents exposed the gravity of marital rape was tabled before Parliament.
Among the provision were provisions on:
- Marital rape;
- Recognition of cohabitation as a form of marriage and in relation to property rights, giving spouses shares in each accumulated property;
- A five (5) year jail term plus a fine not exceeding Ushs. 2,500,000/= for men accused and convicted of marital rape;
The bill is still under review and we can assume that many changes have been made or are yet to be made. If made law, marital rape will be a direct offence on its own and have its penal sanctions. What will be its opponent is the traditional view of marriage.
Question: Does the existence of a marriage assume that consent is inevitable when sexual relations occur?
No. It does not.
Since a legal marriage is one where both parties legally entitled to marry consent to the union, every act therein must be an issue of consent.
True, sexual relations among partners are issues of privacy and can afford to remain private for as long as consent is sought and received between them. The moment either party reports coercion into a sexual act, ‘natural’ or ‘otherwise’, the law governing sexual relations must take precedence.
Now in Uganda, the Domestic Violence Act of 2010 is the major source of law that gives a limited version of protection from similar forms of sexual violence (marital rape, inclusive). There is no legislation on actual offence of marital rape.
BY ATUHAIRWE AGRACE
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