Tuesday, February 4, 2014

Marital Rape: Taming the Waves of Marital Rape





The idea, probably, developed in a temperature-controlled room, somewhere in the bowels of Malawi’s commercial city of Blantyre or Lilongwe, leading to suggestions that ‘Why can’t we reduce occurrences of domestic violence by criminalising rape?’


The issue came into the limelight in June 2001, and at the centre of the storm was the Malawi chapter of Women in Law in Southern Africa Research and Educational Trust (Wlsa), which observed that existing laws were silent on the same.


So hot was the issue that the then Supreme Court of Appeal Judge, Duncan Tambala, quickly pointed out to Pana, a news service organisation, that the country's laws did not regard marital rape, spousal battering and emotional abuse as offences.


"These are not offences under the penal code as adopted from the English law which forms the basis of our law," he said. "As for marital rape, I have problems accepting such offences should be created.”


His argument was that a person could not be punished for having sex with a spouse because by entering into marriage, each spouse is taken to have consented to sexual intercourse with the other spouse during the existence of their marriage.


"This means there cannot be rape between spouses while their marriage subsists because the offence would be inconsistent with the continued existence of marriage," Tambala was quoted as saying.


There was something strange with the suggestion, enthuses Senior Chief Makanjira of Mangochi. The only problem, he says, was that the availability of a vast number of texts as well as educated, urban-based personality without a trace of the ordinary villager created a bookish atmosphere that had a distincttly Western cast to it.


“Otherwise, marriage, by its very nature, is supposed to be a bastion of unity; a honey comb of consent and respect. And, in that regard, a man and a woman are supposed to treat each other with dignity; to respect one another always. If one of the partners forces the other into a situation the other other doesn’t like, marriage counsillors are supposed to come in and, in worst cases, traditional leaders,” Makanjira says.


He says his argument on the premise that consent is the inner logic from which the marriage institution is built, and that no union would take place if there was no consent to married partners to be together, anyway, just that “consent, in the context of the family, is an inflected term; meaning that the needs and attitude of the partners change as their familiarity grows”.


After the depth of the ‘marital rape’ waters was tasted, advocates of the same seem to have been troubled with an uneasy consciousness of their folly, which, in the end, produced meekness and docility but, to the nation, awkwardness, obstinacy, and confusion.


The question, and fear, that remains is that: “Is the issued settled? Won’t be hear people raising the same issue again?” That is a question darted by Makanjira, who suggests a quick solution to the issue so that Malawians may, forever, rest unperturbed.


However, Wlsa Naional Cordinator Seodi White said the organisation has a comprehensive document on maital rape, and that the document had details covering the issue in Malawi.


White said she would furnish The Sunday Times with the document in due course. As we went to press, however, we had not received the document.


However, information obtained from the organisation’s under the title, ‘The Situation of Women in Malawi: A Wlsa Malawi Perspective’ says “Although the 1995 Malawi Constitution guarantees equal rights to men and women, in reality immense obstacles to equality perpetuate gender disparities in many aspects of life. Gender disparities exist in areas such as the law, education, agriculture, health, employment, credit accessibility, and political participation.


“The role of the law in Malawi has contributed to sustaining these gender disparities. There is a large disjuncture between women’s constitutional rights and statutory and customary laws tand this causes serious barriers for women’s empowerment. Customary laws generally dictate unequal gender relations, compounding the discrimination that women face by public and private institutions.


“Many statutory laws which comprise subsidiary legislation to the Constitution continue to discriminate against women. Citizenship, inheritance, abortion laws, play a strong role in the oppression of women,” reads part of the report.



As a result of this, Wlsa says obstacles to gender equality persist in Malawi because of existing discriminatory statutory and customary laws and practices. Among other things, it says “Customary laws and norms deny women their constitutional rights and jeopardize women’s access to property, inheritance and divorce. For example, wives are often victims of discriminatory inheritance practices in which the deceased husband’s family unlawfully takes property. Such discriminatory customary laws and practices are in need of being removed and/or amended in order to come in line with constitutional provisions”.



A visit to the High Court Registry in Blantyre last week revealed that there is not case bordering on marital rape, meaning that it would take some time before tangible progress could be made to bring spouses who act the vagabond to book.


And, with just about everyone being up in arms against the same, it could be a tall order to have a law on marital rape enacted. At least for now.


Meanwhile, the Malawi Police Service has expressed satisfaction with the successes chalked by the Victim Support Unit (VSU) established to help victims find easy recourse to their problems. National Police spokesperson Rhoda Manjolo said, so far, the marital problems that could lead to divorce or the upward of crime are being solved in the confines of a police premises.


Manjolo said this had helped reduce cases of domestic violence, including incidences of forced sex (and not, necessarily, rape), thus turning the mality unit into a bliss complete.


“VSU has been a revelation to us. Let couples who have problems not wait for them to escalate into violence. Our officers are well-equipped to deal with these issues, and, together, we can create a violence-free Malawi. The family can be a source of happiness,” Manjolo said.


The philosophy behind it (VSU), the way Manjolo puts it, is that, when the mind is occupied by no strong feeling of violence, it forms admirable character- a character that retains none of the violent traits that destroy the sanctity of the family.


And the family set up becomes an object, not of pity or horror or ridicule, but of consented respect.



“That’s what we strive to do using the VSU model,” she says.

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