Making a case for criminalising marital rape

Marital rape, a pervasive issue often shrouded in societal silence, demands urgent attention.

Globally, many countries have already recognized the need to criminalize marital rape. It is an imperative move that reflects the evolving understanding of relationships and underscores the commitment to eradicating gender-based violence at all levels.

Like other jurisdictions, marriage in Uganda is considered a sacred institution, yet within its confines, some individuals suffer in silence. The traditional model of marriage as a contract between families for the purpose of reproduction has given way to companionate marriage based on intimacy albeit unevenly and despite resistance.

But, marital rape is finally coming out from behind closed doors. In November 2023, Tororo Woman MP Sarah Opendi, while on the floor of parliament, revealed that there will be no provisions criminalizing marital rape in the proposed Marriage Bill. In defence of that position, she argued that parliament shall not legislate on private matters, i.e., what happens in people’s bedrooms.

While there are indeed people who hold that the intimate nature of marital relationships complicates legal enforcement, such is an extremely controversial position, considering that almost all issues in any marriage, including grounds for divorce, are a result of a couple’s private affairs.

Further, it is imperative to recognize that consent cannot be assumed based on the marital status of individuals and for that reason, no one should endure abuse under the guise of matrimony. Sexual violence in marriage has a history as long as the institution of marriage itself. But for millennia, marital rape, like other forms of sexual assault, was considered a private trouble, not a public issue.

Early rape laws defined the assault as a property crime against the husband or father whose wife or daughter was “defiled.” From the British Common Law to the Qing dynasty in China (1987), it was considered a violation of a woman`s chastity; again, not possible in the context of marriage-sanctioned rape.

This ideology of permanent, irrevocable consent pervaded legal and cultural conceptualizations of marriage and forced sex within it. In the U.S., for example, this ideology has global resonance, not because people on many continents were influenced, but because control of women`s bodies through marriage is foundational to patriarchy.

The World Health Organization estimates in May 2022 show that, in sub-Saharan Africa, almost one in three women (30 per cent) fifteen to forty-five years of age have experienced sexual violence from a male intimate partner, at least once in their lifetime. This evidence-based analysis has increased critical interventions to challenge and transform gender norms.

Regardless of the traditional context, however, attitudes are shifting in all cultures. At this point in the 21st century, changing attitudes towards marital rape, like; firstly, the idea that women’s rights are human rights is no longer a radical or fringe perspective. In fact, sexual violence in marriage has been successfully used as grounds for seeking asylum in the U.S and Canada. Secondly, marital rape brings to the forefront the global HIV/Aids pandemic.

Husbands have infected large numbers of women, particularly in sub-Saharan Africa. The lack of the ability to deny sex—or even ask for sex with a condom—can be life-threatening for women and their children. Public health policy and practice is increasingly cognizant of the damage marital rape does.

International human rights standards emphasize the right to be free from violence, irrespective of gender or marital status. Uganda’s proposed Marriage bill should therefore provide for a clause criminalizing marital rape so that Uganda’s legal framework reinforces commitment to equality and justice and is aligned with the international instruments that we have ratified.

In the absence of legal consequences, marital rape perpetuates a harmful notion that consent is irrevocable once vows are exchanged. This outdated perspective not only violates the principles of autonomy and bodily integrity but also sustains an environment where survivors are hesitant to report abuse. In Uganda’s case, the legislator did in fact advise wives who are raped by their husbands to report to the police.

Again, reporting to police will yield no justice for victims because, in accordance to Uganda’s Constitution and other global legal jurisdictions, no citizen can report a crime that is not prescribed by law.

The prohibition of marital rape within the legal framework is not only a matter of justice for individual survivors but a crucial step towards building a society grounded in equality, respect and the protection of fundamental human rights.

Img Src: indianexpress

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Written by Karagwa Rebecca (0)

Rebecca Karagwa is an AWLF Award Nominee 2020, Chairperson Law Council-UCULS 2019/2020, Learner of the law| Feminist |

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