When he said “I do” he never said what he did…

Access to JusticeApril 18, 20171 CommentsKituo Cha Sheria

law opinion

Every one applauded as they were pronounced one.  Her cheeks turned red after the kiss, it was the happiest day of her life. He had stolen her heart, and she had stolen his last name- or at least that is what the wedding invitations said…

The sermon that day was on a successful marriage in the eyes of the lord. “But I want you to realize that the head of every man is Christ, and the head of the woman is man, and the head of Christ is God.’

Power  imbalances among couples does not begin on the wedding day but way before. Transpiring as a result of the power culturally bestowed onto men (and their families), reinforced by religion as seen above, and approved by customs such as the payment of bride wealth. (Dodoo, 1998). These alter the gender dynamics in marital relationships; limiting women’s independence, perpetrating unequal gender power relations and altering sex negotiation capacities.

Dowry payment or bride price-whichever your poison, is a wide spread practice in the African society. It includes the transfer of wealth from the husband’s family to that of the wife .in the past, it was done by delivering livestock as a sign of appreciation for some, or as a symbol of wealth to others, showing that the Man could take care of a family.  Dowry evolved to bride –price and the kind gesture was commercialized as the money system was introduced. Daughters then became investments and wife’s became property.

The bought cannot be in the same position as the buyer. The woman therefore has no much voice especially when it comes to her sexual autonomy. Whenever the husband gets home drunk or sober as long as he is the mood then the wife’s opinion is not held in high regards.  Some will rape as a form of discipline, some to assert their position as breadwinners. All in all bride price payment has a huge role to play. According to Dr. Onyango through bride wealth a man is seen as having paid for the reproductive labor, hence her sexuality itself is bought.

A young lady forced into a marriage because the “rich” husband could pay the price is also vulnerable and will mostly fall victim to marital rape. This is very common in pastoralist communities who instead of taking their children to school will marry them off young. Some to get money to pay off bride-price for their brothers- at the expense of their sisters who are perceived as sex objects to give birth and take care of babies. A woman forced into marriage will not have much control over her sexuality.

Widow cleansing after an inheritance is a very common practice in Africa. Cultural anthropologists emphasize the ritualistic function of widow inheritance. Among the Luo of Kenya for example, it was tradition that when a woman’s husband died, she had to engage in sexual intercourse without a condom with a “cleanser,” often a non-relative of the deceased husband, to remove the impurity she is believed to have acquired from the death of her husband. (Ochalla, 1996).

Husbands in the African context do not see the need for conjugal consent in a marriage. Some will justify with religion, some with cultural beliefs. So Is it really rape when the perpetrator is a spouse?

Rape may be defined as sexual intercourse with a person without their consent. This may be as a result of physical force or threats, or because the person was unconscious or asleep, or because consent as to the nature of the act was obtained through fraud. (Campbell, 1979). It is also rape if the person is mentally incapable of understanding what is being consented to. The defendant must be proved to have known that the person did not consent or have been reckless as to consent.
Campbell further defines marital rape as any unwanted sexual acts by a married partner or a former married partner committed without consent or against that partner’s will. This may be obtained by force, or threat of force, intimidation, or when a person is unable to consent. These sexual acts include intercourse, anal or oral sex, forced sexual behavior with other individuals, and other sexual activities that are considered by the victim as degrading, humiliating, painful, and unwanted.

In 1 Corinthians 7:3-5 it is written that:

The husband should fulfill his marital duty to his wife, and likewise the wife to her husband. The wife does not have authority over her own body but yields it to her husband. In the same way, the husband does not have authority over his own body but yields it to his wife. Do not deprive each other except perhaps by mutual consent and for a time, so that you may devote yourselves to prayer. Then come together again so that Satan will not tempt you because of your lack of self-control.

This may be interpreted to mean that once married, one has no authority over their body.

In the Islamic context It was narrated that Abu Hurayrah (may Allaah be pleased with him) said: “The Messenger of Allaah (peace and blessings of Allaah be upon him) said: ‘When a man calls his wife to his bed and she refuses, and he went to sleep angry with her, the angels will curse her until morning.’” (Narrated by al-Bukhaari, 3065; Muslim, 1436)

This is a hadeeth told, directing a wife to help her husband seek his satisfaction, because a man is less patient than a woman when it comes to doing without intercourse. The most disturbing thing for a man is his sexual impulse, so Islam urges women to help their husbands in this regard. (Adapted and abbreviated from the commentary by al-Haafiz Ibn Hijr – may Allaah have mercy on him – on this hadeeth in Fath al-Baari).

Further According to one law maker during the passing of the Sexual Offences Act he said:

“An activity between a man and his wife in his bedroom cannot within reason be constituted to be rape. Many people believe this is not an African issue. Marriage creates sexual license to each party … that is the license they get by saying ‘I do’.”

The law interpreters have not been left behind as Lord Matthew Hale’s proposition (known as the Hale doctrine) exemplified the same as follows:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

This clearly proves that the mindset is shared by persons from all fields of life to prove that a wife is an inferior being to her husband. The sexual offences act hits the final blow as it states in Section 43(5) that:

‘with regards to claims of sexual abuse such as rape it shall not apply in respect of persons who are lawful married to each other.’

Kenya has one of the most comprehensive Bill of Rights in Africa that has addressed a lot of human rights issues. Article 45 of the Constitution recognizes that parties in a marriage are equal. That means that all things have to be done with the knowledge and agreement of the parties once you get married. Further, Article 29 guarantees all; including spouses, the freedom from inhuman and degrading treatment.

Marital rape is a form of domestic violence often overlooked by the society because of patriarchal ideologies that emphasize male superiority in marriage and stereotypes justifying marital rape. It provides arguments and reasons necessitating criminalization of rape within marriage. Marital rape happens frequently, causing health problems, pain and distress to abused women. Children in households where marital rape occurs often suffer from the psychological effects of witnessing violence, and because it can undermine the ability of their mothers to care for them (Amnesty, 2002)

Marital rape is one of the most under-reported violent crimes because it is socially tolerated. (Mbote, 2000) Some abused women are afraid to report the violence because they rely financially on their husbands for their upkeep and children’s maintenance. Others feel unable to speak out due to fear and humiliation.

The intermingling of traditional and modern meanings of such concepts should not be underestimated nor easily overlooked when addressing the issue of rape among married couples. Research, prevention, intervention, and treatment programs must therefore be sensitive toward culturally appropriate approaches to this issue and must be mindful of the language used to express the various experiences and perceptions in order to gauge an accurate assessment of the prevalence of rape among married couples.


Criminalizing marital rape

There are three options open to the Kenyan legislature. One is by removing the exemption contained in Section 43 (5) of the SOA without additional language. The effect of this would be that marital rape and rape by other perpetrators would be treated the same way. The second option involves enactment of provisions specifically prescribing marital rape, either by specifying that a husband can be held liable for the rape of his wife, or by adding that the fact that the perpetrator is married to the complainant is no defense in a charge of rape. Thirdly, the legislature can enact additional legislation protecting women from spousal sexual violence. However, while criminalization is a necessary first step in the protection of women from marital rape, it is not sufficient as the only remedy. This is because of the inherent limitations of criminal law.

The criminalization of conduct does not necessarily result in change of people’s attitudes towards the conduct.

Judicial intervention

Courts have a primary role in the enforcement and protection of human rights. An active and creative judiciary can be critical in the protection of married women from spousal sexual violence. An important tool at the disposal of the Kenyan judiciary is their power of judicial review which includes nullifying and striking out legislation on the ground that it is unconstitutional. A constitutional challenge may therefore be brought against the marital rape exemption in section 43 (5) of the SOA under the equality and non-discrimination clauses of the Constitution, particularly as they clearly outlaw discrimination on the ground of marital status. From a strategic point of view, bringing a constitutional challenge may be easier than legislative change as litigation would avoid the publicity and likely polarization of legislative reform.

Public education and awareness-raising

There is also need for sustained public education and awareness-raising on the issue of gender based violence with a view to dismantling of gender stereotypes and negative cultural attitudes against women. Both women and men need to be aware of the physical, psychological and economic harms caused by sexual violence at an individual and societal level. It would also be useful to engage traditional and community justice structures in such a campaign with a view to making them more democratic and gender sensitive.


James Anyanzwa and Kabura Mbiriri

Forced Migration Programme-Kituo Cha Sheria

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