Marriage, an anthropological, cultural, and legal institution, ostensibly binds two hearts in a union of love and commitment. Yet, beneath its veneer of bliss lies a hidden darkness—the spectre of marital rape. Traditionally, marriage has been seen as conferring upon spouses presumed rights of sexual access to each other. This cultural stereotype perpetuates a harmful narrative, blurring the lines between consent and coercion. Marital rape, defined as forcible sexual assault or violence by one spouse toward the other, remains a grey area in many legal systems. It is a silent epidemic, mostly experienced by women, perpetuating chronic violence within relationships. Sociocultural norms, gender dynamics, and the reluctance to classify nonconsensual marital sex as a punishable crime have allowed this shadow to persist. It’s time to change the narrative, recognizing that a woman’s dignity should never be sacrificed on the altar of tradition.
Marital Rape: Roselyne Belinda Achieng’
In reference to the Nation newspaper, we find a young Roselyne Belinda Achieng’ who has just come home having been discharged from hospital after delivering their second child. A few hours in, her husband demands that they get intimate, a request she turns down as she is still nursing some wounds and is also tired. He hears none of it, “I just felt him on top of me and had his way with me,” explains Ms. Achieng’ later. Ms. Belinda went through what is experienced by 10% to 14% of all married women, MARITAL RAPE. Marital rape is a very sensitive but highly ignored topic since it varies based on sociocultural and political ideologies.
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Legal Framework and Challenges
In Kenya, marital rape is utopic in that it is not recognizable by law. It is exempted from the Sexual Offences Act 2006 of Kenya by Section 43 (5) which in reference to the intentional and unlawful acts states that, the section shall not apply in respect of persons who are lawfully married to each other. This position was brought about by the Hale’s doctrine in the 17th Century that in summary saw no sense in how a husband would commit rape to his own legally married wife.
This was the case then, as in that period historically wives would be seen as inferior to their husbands and more of slaves than equals and hence the position by the famous chief justice. As time progressed, the position of women and marriage changed and by 1991 the English House of Lords disregarded the proposition and hence through Lord Keith of Kinkel noted that the wives had the right to withdraw the right of consent even within the parameters of marriage.
This was highly debatable even in Kenya as the patriarchal nature of our society would not fathom how a husband should seek consent before engaging intimately with their lawfully married wife.
The Sexual Offences Act 2006, Section 3(1) explains rape as an offence where one penetrates ones’ genital organs intentionally and unlawfully, without consent or by consent that is obtained by force or by means of threats or intimidation. We clearly see that rape is any sexual activity that happens without consent. In as much as marriage gives the presumed right to sexual activity, we need to understand that, ‘consent to sexual activity, even in an intimate relationship, is a dynamic process which requires constant negotiation and renegotiation between the partners and cannot be assumed to exist by virtue of the existence of an ongoing intimate relationship” writes Prof. Melanie Randall of Western University Faculty of Law.
In addition to that, marriage should not act as a license to sexual assault. Just as the decision to get married is mutual and consensual so should every activity within the marriage. Marital rape, aside from being a legal conundrum, has very lethal repercussions on families and marriages. In fact, most marriages in which marital rape occurs they have significantly higher rates of non-sexual violence and marital dissatisfaction, as well as lower rations of marital quality. Clearly, the non-inclusion of marital rape as a crime and an evil that should be shunned, is proving to be disastrous.
I believe that our country could borrow a leaf from the English and repeal Section43(5) of the Sexual Offences Act. The state needs to remember that it is under the obligation at the international and regional levels to enact legislation and take other measures to ensure such protection, including dealing with gender stereotypes and negative cultural attitudes and practices like marital rape.
International and Regional Perspectives
The government also has the responsibility to protect the family as provided for in article 45 (1) of the Constitution of Kenya 2010 and should therefore work to address this cancerous malady that would otherwise prove to destroy families.
In conclusion, the Kenyan government ought to follow in England’s footsteps and address the issue in its fullness. This article just starts a conversation but indeed we ought to sit down and look deeply into marital rape rather than assuming all is well.
Oh my! I love this conversation starter. As a psychologist, I can affirm that this is indeed a silent epidemic. During my internship, I had clients share heartbreaking stories of how they couldn’t report their abuse due to a ‘lack of evidence.’ In many cases, cultural norms have normalized such violence, making it unimaginable for women to report that their husbands are raping them. One would hope that family members would step in where the law has failed but unfortunately it’s not the case when it comes to this matter. For me, these accounts were some of the most distressing to hear, and often very challenging to address. I earnestly hope that Kenyan law will improve in this regard.Strengthening legal frameworks and increasing public awareness are crucial steps toward addressing this grave issue. Thank you for sharing this!!
My oh my! Thank you for putting this out there.