New push for laws to punish marital rape

Monday July 5 2010


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.”

There are those who want the Sexual Offences Act to be amended to recognise marital rape.

“Members of Parliament are influential and have the power to speak out about forced sex in marriage, and to unequivocally condemn it,” says APHRC.

“They can change the law so that it prohibits marital rape and they can raise awareness that sex within relationships should be consensual, not forced.”

The other proposal is for MPs to participate in raising awareness among the public that marital rape is a crime, and greater government investment in health, legal, and rehabilitation services for people affected by domestic violence.

APHRC argues that women who have been raped experience pain, humiliation, distress, and poor maternal and child health.

Studies have found that forced sex mostly occurs in relationships where the man is having extra-marital affairs or where there is disharmony.

The man expects his wife to yield to his sexual desires without raising questions or resistance. If she refuses for fear of contracting sexually transmitted infections, the man resorts to violence or forced sex, the studies found.

Many women fear reporting such assaults because they might lead to further violence or separation, which might not be in the best interests of the children.

Only women with secondary and higher education or those employed seem to be less likely to experience sexual violence than their primary school dropout and poor counterparts, says the KDHS 2008-09.

— AWC Features