Introduction
Rape is defined as an unlawful sexual activity that involves engaging in sexual activity against the victim’s will by using force or the threat of using force, or with a person who is unable to give informed consent because they are a minor, have a mental health condition, are intoxicated, are unconscious, or are the victim of deception.[1] Anybody regardless of gender and age can be a victim of rape.[2] However, women tend to be more affected by rape since it is based on gender norms and unequal power relations.[3] Majority of us live in a patriarchal system that perceives women as a weaker gender that is subject to control by men.
Marital rape on the other hand refers to any non-consensual sexual acts committed by a spouse, ex-spouse, or former or current partner with whom a rape victim is or has been living in a legally recognized partnership, including non-consensual oral, anal, or vaginal penetration of another person’s body where the penetration is of a sexual nature, with any bodily part or with an object.[4] Marital rape occurs when the victim is unable to consent, when force is used, or when a threat of force is used.[5] A victim lacks the capacity to consent when they are drunk, mentally insane, asleep or unconscious.[6] Marital rape is encouraged by the perception that sex is a component of the “marriage contract,” which required a wife to give her husband approval while having no other role in it.[7] This notion denied women the opportunity to offer their consent each and every time hence normalizing marital rape.
There is a lot of evidence today that marital rape is still viewed in our culture as a less serious crime than other types of rape, and some studies have revealed that a sizable portion of participants still doubt that it is possible to rape one’s wife.[8] Some men believe that their women must have sex with them, thus they see nothing wrong with forcing their partners into sexual activity.[9] At the same time, other people argue that due to the matrimonial permission that the woman has provided, which she cannot revoke, the husband of a woman cannot be directly accused of committing a real rape against his wife.[10] Common law legalised marital rape by providing that a husband could compel his wife to participate in sexual relations without breaking the law.[11] Through the marital contract, the wife was deemed to have given continued agreement to sexual activity.[12]
Marital rape usually occurs between married couples. However, we need not forget that other people in other love affairs may suffer from intimate rape. People in long-term cohabitation relationships may also be victims of intimate rape. Even though a person has separated from their former spouse they may be subjected to the rape of this kind. It is worth noting that even people who have already undergone divorce may find themselves being victims of sexual violence.[13] It is a matter of interest that marital rape should not be studied on itself as a standalone. It should be grouped together with other intimate rape situations and other intimate sexual violence. Even people in same-sex relationships experience sexual violence. Their experiences ought not to be ignored in as much Kenyans are reluctant to accept same sex relationships.
It is quite disappointing that even at this age and time some people still question whether a man can rape his wife.[14] A research carried out found out that only fifty percent of male college students believed that a man can rape his wife.[15] Throughout the history of most societies, it has been acceptable for men to force their wives to have sex against their will but this now should come to an end. The traditional definition of rape did not in any way cover husbands hence it indirectly gave them a license to rape their wives. Hale wrote, “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 the husband which she cannot retract.”[16] This established the notion that once married; a woman does not have the right to refuse sex with her husband. [17]
Local jurisprudence
Spousal rape remains a rather elusive concept more so in the African culture. This falls from the fact that it is generally perceived that once two individuals of ‘marriageable age’[18] come together into the union that then forms the institution of marriage, then consent to sexual intercourse is deemed to have been granted and at all times. As a consequence arising thereof, it is apparent that the term and/or concept of spousal rape remain rather alien for those within the African cultural context. In addition, whereas during the colonial dispensation, it was not uncommon for English judges in their characteristic disparagement of the more idiosyncratic of things African, to declare certain customs to be invalid by reason of being repugnant to justice and morality informed by English [mis] conceptions, it has become rare indeed for any court in independent Kenya to do so.[19] One of the main reasons for this is that it would otherwise be an indication of inappropriate and an absolute recipe for tribal chaos for such a declaration would be seen as to be demeaning the members of the entire tribe of the custom which has so been declared.
However, whereas this might be the case, it is also recognized that every individual human being possesses an inherent right to dignity of the person. This is also against the freedoms of the person and of which should be enjoyed by all persons to the exclusion of others. Needless to add, this sort of freedom was advanced from the Western Cultural context, hence the reason why spousal rape remains a rather vague concept in Africa and in particular Kenya. With the development of these freedoms, marital rape has come to be considered as a criminal offense in many countries including Argentina, Australia, Austria, Canada, Denmark, England, the Fiji Islands, Finland, France, Germany, Hong Kong, Sweden, the United States, and closer home South Africa and Zimbabwe.[20]
It should be noted however that, cultural norms and the perceived social stigma attached to rape often discourage the reporting of marital rape, and prosecution is very rare in many countries. In fact, for a very long time, spousal rape was not considered a crime. To date, Kenyan jurisprudence has yet to evolve as to encompass spousal rape as an offence. The presumption was that a man could not rape his wife.[21]
It is well appreciated that Marital Rape is synonymous with domestic violence and that neither can be tackled in isolation from the other. In this regard, therefore, a rather peculiar aspect of domestic violence in Kenya (as is elsewhere in the world) and marital rape, in particular, is that while it is acknowledged as being prevalent, even pervasive, no exact figures exist as to its occurrence. The figures that exist in studies conducted in Kenya vary greatly but the bottom line is that the cases of Marital Rape associated with Domestic Violence are on the increase in a country where intercourse between a man and woman in a matrimonial bed is regarded as normal practice regardless the circumstances so surrounding.[22]
In 2002, The Attorney General of Kenya, Hon. Amos Wako while addressing Parliament stated that 51% of the Kenyan women were in abusive relationships and that the violence often resulted in severe injury or death of the woman. Obviously in the process, sexual violence indeed does occur. In a study conducted the same year, the attorney general further added that the same 51% was the proportion of women living in Nairobi, Kenya’s capital and thus considering that the incidents and prevalence of domestic violence are appreciably higher in the rural areas than in the Capital, it is arguable that the national prevalence may well be higher than the alleged 51%[23]. In a grim rejoinder, the government released a report[24] complementing that of FIDA, Kenya. Whereas this was a government report and thus viewed with scepticism out of the government’s notorious way of downplaying social issues in a way of painting a positive picture, the report nonetheless shows that the reality will be rather grim.[25] Contrasted with the government’s report which is most likely in all circumstances understated, those from a private sector study published in 2002 indicated that a staggering 83% of women reported physical abuse. Specifically on intimate violence, 60% of women reported that they were victims of domestic abuse.[26] These findings are bolstered by the 2008-09 Kenya Demographic and Health Survey which showed endemic rates of marital violence, with 13% of married women – more than one out of every 10 women – reporting being raped by their male partners. Similarly, a 2008 study undertaken by FIDA-Kenya found that up to 74.5% of respondents indicated that they have been physically abused within the home. The study found that the respondents experienced various forms of violence, including physical, economic, sexual, psychological and emotional violence. This report indicated that the most common form of sexual violence reported by women who participated in the study was marital rape. The women respondents lamented that their abusive husbands treated them as property and disregarded any notions of consent to sexual activity.
Local instruments
Marital rape is a serious issue in Kenya, and the country’s statutes are beginning to reflect that.
The Sexual Offences Act of 2006 (SOA) represents a major step forward in efforts to protect victims of sexual violence, who are predominantly women. The Act has been lauded as a progressive piece of legislation, as it was the first statute to comprehensively address sexual offences in Kenya and reflects a significant change of orientation in the handling of sexual offences. Prior to 2006, sexual offences were dealt with under the Penal Code and were categorized as “offences against morality”. The Act repealed most of the offences under the Penal Code and substituted its own provisions. The Act was a culmination of debate and negotiation in the context of high incidences of rape, defilement, and incest in the country, as well as the scourge of HIV/AIDS, and new social realities such as child sex tourism and developments in the field of forensics, such as DNA profiling. The Act introduced new offences,[27] imposed minimum mandatory sentences[28] and provided for the setting up of a DNA data bank and a sex offender’s registry, among other measures. The new definition of rape introduced by the SOA contemplates that the perpetrator or the victim may be either male or female, unlike the Penal Code which provided only for the rape of women or girls. Section 3 (1) provides that: A person commits the offence termed rape if he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; the other person does not consent to the penetration; or the consent is obtained by force or by means of threats or intimidation of any kind. Related offences include sexual assault and indecent acts which may equally be committed by men or women. Sexual assault covers penetration of the genital organs with objects such as a bottle or even digital penetration.
Section 42 provides that “a person consents if he or she agrees by choice and has the freedom and capacity to make that choice”. Although the section does not elaborate on the meaning of choice or freedom, this definition appears to emphasize the importance of free will and the ability to make a decision about whether or not to take part in the sexual activity at the time in question, in the absence of coercion or deceit. The SOA also provides for rebuttable and irrebuttable presumptions of lack of consent which are intended to make it easier for the prosecution to prove lack of consent. Under section 44, lack of consent will be presumed where it is proved that the following circumstances existed:
- Any person used or threatened violence against the complainant at the time of the act or immediately before the first sexual activity began;
- Any person caused the complainant to fear at the time of the act or immediately before the first sexual act, that violence was being used or would be used immediately against another person.
As noted above, rape consists of “an intentional and unlawful” act that causes penetration.[29] The Domestic Violence Act (DVA) was passed in 2015 to further protect victims from gender-based violence including marital rape within intimate relationships. Under this law, spousal abuse is considered a form of domestic violence which carries its own set of penalties such as fines or jail time depending on how severe it is deemed by authorities when investigated and prosecuted appropriately by police officers trained in handling these cases sensitively with victims’ rights kept paramount throughout proceedings. Additionally, the DVA provides legal aid services to survivors seeking justice through court proceedings against their perpetrators ensuring all parties involved have access to fair representation during judicial processes.
There has been recent progress made towards criminalizing forced marriages involving minors where consent cannot be given due to age restrictions imposed upon them regardless of if they were conducted under Islamic Law or not according to national legislation proposed last year. In addition, amendments have been proposed regarding existing laws concerning dowry payments where brides can no longer be held responsible financially if they choose not to go through marriage ceremonies without their explicit consent being present first before any agreement takes place legally binding both sides into matrimony accordingly. These advances demonstrate Kenya’s dedication towards protecting individuals from falling victim to forms of gender-based violence especially amongst vulnerable populations such as young girls experiencing coercion into unwanted unions prematurely making sure all citizens receive equal protection under its statutes moving forward positively now more than ever before.
Under Kenyan Jurisprudence, Marital rape is not recognized by the Penal Code[30] (which is the principal statute for the creation of offences) as a criminal offence because of the presumption that consent to sexual intercourse is given by the act of marriage. Therefore, the perpetrators often go unpunished or, if at all convicted, are punished for assault. However, the Act does create the offence of Rape which it classifies under Chapter XV as ‘Offences against Morality’. To this effect, the Act does define the act of rape thus;
…Any person who has unlawful carnal knowledge of a woman or girl, without her consent or her consent if the consent is obtained by force or means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of a felony termed rape[31]
From the wordings, ‘…or in the case of a married woman, by personating her husband…’ the architecture and design of the Statute, it does seem as though the Penal Code indeed does exempt a married man, (a husband to that effect) from the offence of Rape if at all the victim is married to the perpetrator of the offence. This presents a rather sad deficiency in the legal jurisprudence of Criminal law.
The Sexual Offences Act[32] equally falls short of the definition of the term ‘Marital Rape.’ However, the Act does define the offence of Rape. The Act reads thus;
‘…A person commits the offence termed rape if-
- He or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
- The other person does not consent to the penetration; or
- The consent is obtained by force or by means of threats or by means of intimidation of any kind…’
Whereas this is an improvement of the Penal Code,[33] the Act[34] still fails akin miserably to define the offence of ‘Marital Rape.’ However, an exception might be drawn from the wording …a person… which could thus be implied to include a husband or even a wife. However, since this is not expressly mentioned in the Act, then the Common Law effect might as well take effect in which case then the elements of the offence ‘Marital Rape’ will be defeated. This then calls for a deeper jurisprudential analysis of this offence.
International perspective
Different countries have taken different approach in so far as marital rape is concerned. Some countries do not recognise marital rape as a criminal offence. Some countries are liberal in that they consider marital rape as a criminal offence; however, they have different exceptions attached to marital rape. Most progressive states on the other side have totally criminalised marital rape. Some International instruments such as treaties and conventions push for equal treatment of both men and women. To that extent, they, directly and indirectly, call for criminalisation of marital rape. Marital rape at the same time reaps women off the personal dignity that they hold so dear.
In 1932, Poland became the first nation to formally decriminalize marital rape.[35] Australia became the first common law nation to approve legislation making marital rape a crime in 1976 as a result of the second feminism wave.[36] Some common law nations like South Africa, Ireland, Israel, Ghana, etc., have made marital rape a crime since the 1980s.[37] Over the past twenty years, several Scandinavian countries and the Communist bloc have followed the suit.[38] Marital rape is illegal in some form or another in close to 150 nations. Some states have explicitly while marital rape is not expressly recognized as rape in certain countries; however, there are still penalties for husbands who use violence to have sex with their wives in those other nations.
Expressly decriminalization of rape means that the law does not distinguish between rape and marital rape. Countries that have done so include Australia, Canada, France and Hong Kong. Several African nations such as the Rwanda, Namibia, Sierra Leone and Mozambique have also expressly decriminalized rape. In numerous other nations, where marital rape may constitute an offense punishable by law and carry a range of punishments, simple decriminalization is practiced. For instance, spousal rape is not expressly prohibited by the rape laws in Liberia. However, in 2006, the “marriage exemption” was dropped from the legislation.[39]
Some nations have laws that make it illegal for spouses to abuse one another sexually, but they do not specifically forbid marital rape. For instance, rape carries a death sentence as the maximum penalty in Kuwait. Spousal rape was not covered by the law. However, the Kuwaiti government passed legislation against domestic abuse in 2020, making it illegal for family members and spouses to mistreat one another physically, psychologically, sexually, or financially. Malaysia does not have a law against marital rape either; however, a husband can be punished for forcing his wife to have intercourse with him.[40]
International instruments
International Covenant on Civil and Political Rights particularly pushes for an equal playing field for both men and women. Article 26 of the said Covenant provides that everyone has a right to equal protection under the law and is treated equally in front of the law. In this regard, the law must forbid all forms of discrimination and ensure that everyone has access to equal and effective protection from discrimination on the basis of any factor, including but not limited to sex and status.[41] The domestic laws of the member states are therefore expected to reflect equal protection of dignity to all citizens irrespective of their status. Marital rape unfortunately discriminates between married and unmarried women.[42] Member states cannot purport to be criminalising rape generally while at the same time consider marital rape as a legal act.
Convention on the Elimination of All Forms of Discrimination Against Women intends to fight for the rights of women. It provides in Article 5(a) that, states parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women with a view of achieving the eradication of prejudices, customs, and all other practices that are based on the idea of the inferiority or superiority of either of the sexes or on stereotyped roles for men and women.[43] Marital rape is premised on the traditional idea that women are property of men. The international society has recognised that women are equal to men hence should be treated as distinct persons. Changes in the society consequently influenced and necessitated changes in the law. All states should therefore in good will allow women to enjoy their dignity by putting an end to the legal era of marital rape since it tends to discriminate women.
Closer home, Africans recognised that women and men deserve equal treatment. They therefore formulated the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa which is often referred to as Maputo Protocol. Article (2) (1)(b) of the Protocol mandates the state parties to adopt and successfully carry out relevant legislation or regulatory measures, such as those outlawing and eradicating all types of discrimination, especially those detrimental practices that negatively impact the health and general well-being of women.[44] In addition, Article 3 of the Maputo Protocol guarantees women of their right to dignity. It expressly provides that every woman shall have the right to dignity inherent in a human being and to the recognition and protection of her human and legal rights.[45] Sub-article three of the same provision requires that States Parties must adopt and put into effect necessary safeguards against any kind of mistreatment or exploitation of women.[46] Further, Article 4 requires state parties to forbid the subjection of women to cruel, inhumane, or humiliating treatment or punishment.[47] Article 4(2) encourages mandates state parties to take positive steps in adopting and implementing legislation that forbids all forms of violence against women, including unwanted or coerced sex, whether it occurs in public or in private.[48] The African woman is therefore effectively protected from marital rape in paper. It is disappointing that some member states of Maputo Protocol are still reluctant to criminalise marital rape.
Comparative jurisprudence
United Kingdom took the positive step by outlawing marital rape in its statutory provisions. Their Sexual offences Act 2003 provides marital rape as a sexual offence.[49] United Kingdom refers to marital rape as spousal rape since the offence occurs when a person commits a sexual act without the consent of their spouse (or ex-spouse) or does so against them.[50] To that extent, marital rape in the United Kingdom is much more accommodative in that it even covers former spouses.
But even before statutory rape was put in place, the United Kingdom courts moved fast and outlawed marital rape. The House of Lords held in the case of R VS R (1991) that nowadays, the claim that a wife who marries irrevocably agrees to sexual relations at all times cannot be taken seriously.[51] This celebrated case established certain requirements that the prosecutor must prove for the accused to be found guilty of marital rape. The requirements are proof of penetration of the anus, mouth or vagina. The prosecutor is not only required to prove that the act of penetration was intentional but also that the plaintiff did not consent to the act of penetration. Finally, the prosecutor has to show that the defendant did not reasonably believe that the accused had consented to the relevant fact.[52]
France outlawed marital rape in 2006.[53] However, marital rape is still considered a thorny issue in France especially in divorce cases. It appears that the law is offering protection to women on one hand while still exposing them to unnecessary risk on the other hand. The courts treat sex as a marital duty of women hence women obtain just but virtual protection.[54] Denial of consent can be a ground for divorce in France.[55] The court should come out clear and side with the statutory provisions.
The United States of America changed its stance on marital rape in the late twentieth century. This was encouraged by the 1970’s anti-rape movement who frequently challenged the government to put an end to the discriminative application of the spousal exception since it failed to offer equal protection from rape to all women.[56] The sates within the United States of America therefore moved with speed and codified the criminalisation of marital rape. However, some of the states still offer spousal exceptions within the jurisdiction of United States of America.[57] This puts out the message that somehow marital rape is both separate and distinct from other rape and a lesser crime at the same time. Further, it drains the efforts that the rest of the states have tried to make by confirming the archaic belief that women are the property of their husbands hence the marriage contract is an entitlement to sex.[58]
Statistics on marital rape
- Intimate partners, such as a husband or lover, sexually attack between 14% and 25% of women when they are dating.[59]
- The percentage of married women who will be raped by an intimate partner ranges from 10 to 14%.[60]
- 40% to 45% of those who are in abusive relationships will experience sexual assault at some point throughout the relationship.[61]
- Married partner rapes are four times more common than rapes committed by complete strangers.[62]
- Around one in five (about 18%) of female marital rape survivors said their kids saw the attack.[63]
- Just 36% of rape victims ever report the crime to police, and the percentage of married women who report a spousal rape is considerably lower. As a result, marital and intimate partner rapes go unreported.[64]
Against this backdrop, it is evident that marital rape has really caught up with us. There is no need therefore for treating marital rape as if it is any way a lesser crime. We have already moved on from the doctrine of coverture of women can no longer be treated as the property of men. Women deserve special protection from rape even from their very own spouse.
Effects of marital rape
The physical effects of marital rape may include injuries to the vaginal and anal areas, lacerations, soreness, bruising, torn muscles, fatigue, and vomiting. Women who have been battered and raped by their husbands may suffer other physical consequences including broken bones, black eyes, bloody noses, and knife wounds that occur during the sexual violence. Specific gynecological consequences of marital rape include vaginal stretching, anal tearing, pelvic pain, urinary tract infections, miscarriages, stillbirths, bladder infections, infertility, and the potential contraction of sexually transmitted diseases including HIV/AIDS. There is a relationship between increased HIV risk and forced sexual intercourse. Most notably this is the result of women’s inability to use barrier contraceptives because of their partners’ threats or refusal to use condoms. The inability to use contraception may also lead to unwanted pregnancy.
Some of the short-term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, disordered sleeping, and post-traumatic stress disorder. Long-term effects often include disordered eating, sleep problems, depression and sexual distress, problems establishing trusting relationships, distorted body image, and increased negative feelings about themselves. Unfortunately, the psychological effects are likely to be long-lasting. Some marital rape survivors report flash-backs, sexual dysfunction, and emotional pain for years after the violence.
Conclusion
We appreciate the fact that the government has taken positive measures to put an end to domestic violence. At the same time our courts have been heavily punishing people who are found to have committed rape. Kenya has always been progressive in the manner in which it makes and applies its law. This has been informed by societal expectations in addition to what is generally happening in other parts of the world. Some countries have criminalised marital rape. It is time that Kenya followed the same suit.
Rape is rape. This is the position even though our country’s (Kenya) legal jurisprudence is as yet to develop as to fully embrace this position. Equally clearly, rape is also a violation of the right to life and the right to liberty, and security of a person. Finally, rape amounts to discrimination against women. Consequent thereto, rape – marital or otherwise amounts to the violation of fundamental human rights and is criminalized as such, thus protecting women’s fundamental right to equal protection before the law.
Helga Were is highly passionate about using research as a tool for social change. Cognizant of the numerous social problems, the author is highly inspired by platforms that allow youth to learn the art of research and allow them to air their thoughts.
Michael Omondi is focused on writing on socioeconomic issues. He also have a keen interest in politics.
[1] Rape (no date) Encyclopædia Britannica. Encyclopædia Britannica, inc. Available at: https://www.britannica.com/topic/rape-crime (Accessed: March 2, 2023).
[2] Lyness, D.A. (ed.) (2015) Rape (for teens) – nemours kidshealth, KidsHealth. The Nemours Foundation. Available at: https://kidshealth.org/en/teens/rape-what-to-do.html (Accessed: March 2, 2023).
[3] Sexual & gender-based violence (no date) UNHCR Kenya. Available at: https://help.unhcr.org/kenya/helpful-services/sexual-gender-based-violence/ (Accessed: March 2, 2023).
[4] Marital rape (2013) European Institute for Gender Equality. European Institute for Gender Equality. Available at: https://eige.europa.eu/thesaurus/terms/1282 (Accessed: March 2, 2023).
[5] Bergen, R. (2006,February). Martial Rape: New Research and Directions. Harrisburg, PA: VAWnet, a project of the National Resource Center on Domestic Violence/Pennsylvania Coalition Against Domestic Violence. Retrieved 03/03/2023, from: http://www.vawnet.org
[6] What consent looks like (no date) RAINN. Available at: https://www.rainn.org/articles/what-is-consent (Accessed: February 17, 2023).
[7] SC’s observations ‘welcome’ but marital rape still not illegal in India, here are countries where it is (2022) https://www.outlookindia.com/ . Available at: https://www.outlookindia.com/national/sc-observations-welcome-but-omarital-rape-still-not-illegal-in-india-here-are-countries-where-it-is-news-226913 (Accessed: March 2, 2023).
[8] Whatley, M. (2005). The effect of participant sex, victim dress, and traditional attitudes on causal judgements for marital rape victims. Journal of Family Violence, 20, 191-200.
[9] Ten harmful beliefs that perpetuate violence against women and girls (2022) Oxfam International. Available at: https://www.oxfam.org/en/ten-harmful-beliefs-perpetuate-violence-against-women-and-girls (Accessed: March 3, 2023).
[10] A guide to marital rape law (no date) A Guide to Marital Rape Law – Noble Solicitors. Available at: https://www.noblesolicitors.co.uk/about/a-guide-to-marital-rape.html (Accessed: March 3, 2023).
[11] Ibid.
[12] Ibid.
[13] Bergen, R. K. (1996). Wife rape: Understanding the response of survivors and service providers. Thousand Oaks, CA: Sage
[14] Whatley, M. (2005). The effect of participant sex, victim dress, and traditional attitudes on causal judgements for marital rape victims. Journal of Family Violence, 20, 191-200
[15] Monson, C., Byrd, G., & Langhinrichsen-Rohling, J. (1996). To have and to hold: Perceptions of marital rape. Journal of Interpersonal Violence, 11, 410-424.
[16] Bergen, R. (2006,February). Martial Rape: New Research and Directions. Harrisburg, PA: VAWnet, a project of the National Resource Center on Domestic Violence/Pennsylvania Coalition Against Domestic Violence. Retrieved 03/03/2023, from: http://www.vawnet.org
[17] Ibid.
[18] To this effect it is worth noting that there is no universal description of the term ‘marriageable age’ and that this would depend and vary from the customs of one community to another.
[19] Supra note 7
[20] Country Reports on Human Rights Practices released by the US State Department, Bureau of Democracy, Human Rights and Labor, were used to determine countries’ Legal status of Marital Rape
[21] This was based on the Common Law Theory that a man cannot rape his wife. Pleas of the Crown (1736)
[22] Shimoli E, “New Law to Target Domestic Brutes” Daily Nation, Friday, November 3, 2002.
[23] Nyaund T,‘Domestic Violence in Kenya – Report of a Baseline Survey Among Women in Nairobi’ (March 2002) International Federation of Women Lawyers (FIDA) Kenya.)
[24] Central Bureau Of Statistics, (Government of Kenya)
[25] Part of the Report read thus; Forty four percent of women married, divorced or separated aged 15 – 49 report that they have been physically or sexually violated by their husbands or partners while 29% said that they have been victims of such violence in the year preceding the survey.
[26] Johnston, Tony; ‘Domestic Abuse in Kenya’, Nairobi :Population Communication Africa,(2002),p.10 as quoted in Patrick Kiage, ‘Domestic Violence in Kenya: Towards More Effective intervention,’ Law Society of Kenya Journal 1 (2005) 1 p. 48
[27] These include gang rape, sexual assault, sexual harassment, deliberate infection with HIV/AIDS, child trafficking for sexual exploitation and child pornography, among others.
[28] This is by contrast to the Penal Code which only provided for maximum sentences and left a lot of room for discretion in sentencing.
[29] Section 3, SOA
[30] Cap 63, Laws of Kenya
[31] Section 139 of the Penal Code
[32] Act No. 3 of 2006 (came into force on the 21st day of July 2006)
[33] Supra n 21
[34] Supra n 23
[35] Bhattacharyya, A. (no date) Marital rape laws: An international overview, Legal Service India – Law, Lawyers and Legal Resources. Legal Service India E-Journal. Available at: https://www.legalserviceindia.com/legal/article-7872-marital-rape-laws-an-international-overview.html (Accessed: March 4, 2023).
[36] Ibid.
[37] Ibid.
[38] Ibid.
[39] SC’s observations ‘welcome’ but marital rape still not illegal in India, here are countries where it is (2022) https://www.outlookindia.com/ . Available at: https://www.outlookindia.com/national/sc-observations-welcome-but-omarital-rape-still-not-illegal-in-india-here-are-countries-where-it-is-news-226913 (Accessed: March 2, 2023).
[40] Ibid.
[41] Article 26 of the International Covenant on Civil and Political Rights.
[42] Bhattacharyya, A. (no date) Marital rape laws: An international overview, Legal Service India – Law, Lawyers and Legal Resources. Legal Service India E-Journal. Available at: https://www.legalserviceindia.com/legal/article-7872-marital-rape-laws-an-international-overview.html (Accessed: March 4, 2023).
[43] Article 5(a) of the Convention on the Elimination of All Forms of Discrimination Against Women.
[44] Article (2) (1) (b) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.
[45] Article 3(1) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.
[46] Article 3(3) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.
[47] Article 4(1) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.
[48] Article 4(2) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.
[49] United Kingdom Sexual Offences Act 2003.
[50] A guide to marital rape law (no date) A Guide to Marital Rape Law – Noble Solicitors. Available at: https://www.noblesolicitors.co.uk/about/a-guide-to-marital-rape.html (Accessed: March 3, 2023).
[51] Ibid.
[52] Ibid.
[53] Raving, S. (2021) A French court ruled that a woman has a “marital duty” to have sex with her husband, Medium. Medium. Available at: https://starkraving.medium.com/a-french-court-ruled-that-a-woman-has-a-marital-duty-to-have-sex-with-her-husband-d7d809de733e (Accessed: March 3, 2023).
[54] Ibid.
[55] Ibid.
[56] Bidwell, L., & White, P. (1986). The family context of marital rape. The Journal of Family Violence, 1, 277-287.
[57] DeKeseredy, W., Rogness, M., & Schwartz, M. (2004). Separation/divorce sexual assault: The current state of social scientific knowledge. Aggression and Violent Behavior, 9, 675-691.
[58] Russell, D. E. H. (1990). Rape in marriage. New York: Macmillan Press.
[59] Valencia, M. 2021. “Marital Rape Is Still Legal.” On-line: Women Talk
[60] Ibid.
[61] Ibid.
[62] Ibid.
[63] Ibid.
[64] Ibid.
