New push for laws to punish marital rape

• Evidence of assault, including witnesses, among hurdles in matrimonial rules

Human rights and reproductive health organisations are urging Parliament to create a law to criminalise forced sex in marriages.

They further want MPs to sensitise their constituents on the need to engage in consensual sex.

In Marital Rape and Its Impact: A Policy Brief for the Kenyan Members of Parliament, 2010, the African Population and Health Research Centre (APHRC) says forced sex within marriage is rape, a criminal offence which must be punished.

Children’s maintenance

“Marital rape is one of the under-reported violent crimes because it is socially tolerated. Some abused women are afraid to report because they rely financially on their husbands for their upkeep and children’s maintenance, while others fear the humiliation,” the brief says.

The push for the law follows admission of rape by women who participated in the Kenya Demographic and Health Survey (KDHS), 2008-09, whose results were released recently.

At least 14 per cent of the married women surveyed said they had been forced to have sex by current husbands and partners in the year preceding the study. Another 37 per cent said they had been subjected to sexual violence by current husbands or partners.

Many of the women had to agree to sex to avoid violence or to protect their children. Men in Western and Nyanza provinces were found to be the leading perpetrators of this sexual violence.

Herculean task

But it is going to be a herculean task to get the male-dominated Parliament and communities to accept that first, marital rape exists and second, that those who engage in it need to be punished. Then there is the enforcement of such a law.

This was one of the issues that MPs were uncomfortable with during the debate on the Sexual Offences Act. The legislators feared that such a law would cause trouble in marriages.

The society also largely believes that the idea of marital rape is a Western fantasy.

Ms Jane Onyango, former executive director of FIDA-Kenya observes: “It is regarded that women give blanket consent to sex once they get married.”

But she said such interpretation and thinking is to blame for the continued abuse of women in marriages.

Reproductive health experts also say that those who suffer this form of violence have nowhere to go because the law does not acknowledge marital rape. The Sexual Offences Act of 2006 fails to recognise marital rape as a form of sexual violence.

Under the Act, anybody found guilty of a sexual offence is liable to imprisonment for a term of not less than 10 years, which may be enhanced to life. Married women can only complain of this violence under the general law of assault.

Still, APHRC says it is difficult to sustain a case of marital rape.

“This law is inadequate for protecting women from marital rape because it requires witnesses or evidence of a physical struggle.”