A huge smile grew on Mary’s face when I greeted her. She is the most nurturing person you’ll ever encounter. With her shy demeanour and disarming smile, she’s the type of person you’ll likely never see angry- even in the most galling of circumstances. We spoke about her strict upbringing in the 1980s in the then Nyanza Province, Kenya. She then recounted how early marriage robbed her of her youth, introducing her to the somewhat unforgiving life of marriage at the tender age of 16.
As the conversation progressed a more sombre, reflective tone took over. Every step back into the past stirred embers of deep-seated anger in the now serious looking Mary. “At that time, I didn’t think that he was raping me,” she told me. “That was in the early days of our marriage. I was naïve, he had all the power.” Mary was sexually violated repeatedly by her husband, the man she’d vowed to stick by since she was 16. Mary represents thousands of Kenyan women who are victims of marital rape, cases that have gone largely unreported.
According to the Kenya Demographic Health Survey (KDHS) report 2014, 55% of ever-married women in the survey who had experienced sexual violence identified current husbands and partners as the perpetrators. The survey also noted that 12% of ever-married women reported having been physically forced to have sexual intercourse with their current or former husbands.
The same trend is mirrored globally. UN Women estimates that one in three women have been subjected to physical and/or sexual intimate partner violence, non-partner sexual violence, or both at least once in their life.
Joshua Nyolo who works as a community mobilization officer at LVCT Health (LVCT) says that Sexual Intimate Partner Violence is prevalent in the country. “We have received several cases of women who have declared to have been sexually violated by their husbands or long-time partners who they perceive to be their husbands.”
The Kenya Demographic Health Survey report 2014 stated that 37% of men in the survey who had experienced sexual violence reported having been sexually violated by their current wives. However, Joshua Nyolo says that he is yet to receive a male survivor of sexual intimate partner violence perpetrated by current wives.
Intimate partner sexual violence is not specific to heterosexual couples. Joshua recorded one case of sexual abuse perpetrated by a spouse in a gay relationship. “We were able to refer them to another facility that deals with men who have sex with men and they were able to be taken to a shelter,” he narrated.
The actual number of cases might be higher as most cases of sexual intimate partner violence go unreported because unlike rape committed by a stranger, marital rape is not explicitly addressed by the law or recognized by the community.
“This happens to many women in marriages. But no one wants to speak about it.” That statement by Mary explained the notable lack of data detailing this form of abuse, or even acknowledging its existence in Kenya. This reporter has found no police reports, news articles, or court documents of a conviction. It is almost as if the crime doesn’t exist.
Vivian Mwende, program officer at the Federation of Women Lawyers in Kenya (FIDA), pointed to the British Common Law for this crucial exclusion. Specifically, a court ruling written by an English judge in 1736 in England is at the centre of this debate. “In a nutshell, when you say ‘I do’, you have consented to everything else in marriage,” Vivian clarified. “That’s why it was initially there in the Sexual Offenses Act but the members of parliament refused it. They refused marital rape to be part of the act.”
According to the Sexual Offenses Act of 2006, rape is when one intentionally and unlawfully commits an act that causes penetration with his or her genital organs. When the other person does not consent to the penetration when the consent is obtained by force or by means of threats or intimidation of any kind. Hence, marital rape is rape that occurs within a lawful marriage i.e. non-consensual penetration committed by the victim’s spouse.
The crime of rape attracts a ten-to-fifteen-year sentence. However, marital rape is not mentioned as an offence in the Sexual Offenses Act, of 2006. This wasn’t the case at first. Marital rape was included as an offence in the proposed sexual offenses act sponsored by current supreme court judge, Justice Njoki Ndung’u, alongside other legislation such as the minimum mandatory sentence of 15 years for any sexual offence. It was vehemently opposed by male legislators.
Sexual violence within marriage is nonetheless addressed in the Protection Against Domestic Violence Act, 2015 (PADVA). Vivian argues that that’s where the problem lies. “You will never see a charge sheet written ‘marital rape’. It will be filed as ‘Violence within marriage.’ That will be left to the discretion of the court. The Sexual Offenses Act has a mandatory minimum sentence, the PADVA does not,” Vivian said. “By you removing marital rape from the SOA, you leave it at the mercy of the PADVA.”
When I asked whether anyone had been incarcerated for marital rape, Vivian’s response was striking. “No,” she said. “You are only charged what’s in the charge sheet. If there is no mention of marital rape in the charge sheet, then you cannot be charged for that. You cannot even be sentenced.”
The widespread perception that consent cannot be withdrawn in marriage was openly expressed in parliament in April 2006 when the proposed act was brought before the 9th parliament. At some point, male legislators staged a walkout when Justice Njoki Ndung’u got up to state her case.
The parliamentary Hansard contains the proceedings in parliament on April 27, 2006, as some of the MPs relentlessly attacked the proposed section. “I cannot rape my wife! I do not think there is one man here who can rape his wife! If there is a man here who can rape his wife, raise your hand! You cannot rape your wife! You can rape somebody else!” Former Kitutu Chache North Member of Parliament Jimmy Angwenyi declared.
Florence Machio, a women’s rights activist, shared a copy of the May 2006 issue of the now defunct Africa Woman publication. In an article in the issue, Jimmy Angwenyi is quoted to have described the bill as ‘good but full of rubbish’. The article continues to document that the debate was so acrimonious that women legislators also walked out in protest against ‘how their male colleagues were trivialising the debate.’ The screen grab below captures the polarising atmosphere in parliament during that heated debate.
“Would you countenance the idea that you can rape your wife? I have paid a dowry for my wife and we are formally married. I cannot rape her by any chance!” Jimmy Angwenyi continued in opposition to the act.
This adamant opposition in parliament by male legislators stymied this vital section of the act. Effectively eliminating marital rape from the Sexual Offenses Act that’s in effect to date.
The effects of Marital Rape
During COVID-19 lockdowns in Kenya, Human Rights Watch recorded an acute increase in cases of gender-based violence in communities. The National Crime Research Centre reported an 87.7% increase in GBV cases during the three-month-long (April-June 2020) lockdown. Similarly, according to research by BMJ Global Health, emergency calls to the national domestic violence hotline increased by 1000% between February and June 2020. Women, girls and boys were increasingly facing physical and sexual abuse throughout the country. It is difficult to overstate the severity of physical and sexual abuse meted out to women and girls at the height of the pandemic. Worst of all, many were stuck at home with their abusers.
A disturbingly similar situation persists for victims of sexual intimate partner violence. “That now is the difference between marital rape and rape by a stranger. As bad as it is the stranger rapes you once and leaves, but you have this person who consistently does it until they take away your esteem. They take away your power. You have no power to say yes, you have no power to say no.”
Marital rape, causes great pain, humiliation and emotional distress to survivors. Trauma can be projected onto children who witness repeated assaults.
The question of consent within marriage is a contentious one. Some cultures and religions worldwide teach women to be subservient to their husbands. This worldview is so woven into the fabric of these societies that uprooting it has proven difficult. In Kenya and across Africa, such beliefs have enabled intimate partner violence in the name of traditions. Similar to what Lord Hale stated centuries ago, marriage is still viewed by some as an unimpeachable treaty of consent. In other words, the woman left her birth home behind and now belongs to her husband. She becomes his property.
A proverb in Swahili says mwanamke mpumbavu huvunja nyumba yake kwa mikono yake (A foolish woman destroys her own house with her hands). Shame is attached to divorce in some African societies and others around the world, especially where that divorce is initiated by the woman. It is also attached to women who dare to stand up to the authority of their husbands, even against abuse.
Jane Thiomi, a program manager of Gender Based Violence at LVCT Health blames this form of abuse on ignorance. “When you talk to couples, men were actually getting shocked that they should be asking for sex from their wives,” she observed. “Nobody taught men that they should ask their wives for sex. But most couples are willing to do things differently.”
“At bridal showers, women are told that you don’t say no to your husband, you don’t say you have a headache. Never say no to your husband, it is his right,” Florence Machio told me. She cites an ‘entitlement’ that men have to women’s bodies as a reason for marital rape.
Revolution of thought
“The patriarchal nature of our society is among the many drivers that expose women to marital rape,” Michael Gaitho, a senior technical advisor at LVCT Health observed. This observation is shared by Florence Machio who also noted the lack of adequate female voices in the corridors of power to legislate policies that outrightly outlaw marital rape. “So long as we have patriarchy rearing its ugly head within our national assembly, it’s very difficult for us to get to a place where there is a law. Because it is in the interest of men to weaken women.”
Mary pointed to the empowerment of women as an important force in countering this form of abuse. “It dawned on me that I was getting raped after I got on social media years later. Now, we both have to consent for anything to happen. The generation of women who came after me is strong enough to stand their ground.”
Florence also believes that the perception is steadily changing. “It’s already changing because women now are not accepting certain things yet we were told by our mothers,” she stated.
“Sometimes it is our silence that kills us as women.”