Marital rape: dusted, but sleeping, debate

A mass of tangled hurdles, mainly stemming out of cultural inhibitions, stood in the way of the campaign to have marital rape recognised in the statutes in Malawi.

And, in the end— judging by the silence of hither to relentless campaigners – the majority who opposed the suggestion seem to have won, yet another indicator that gender activism faces various windings before gender equality principles could become entrenched in Malawi society.

But, according to gender activist Emma Kaliya, it is just unfortunate that a significant number of Malawians” misunderstood the whole concept, a development that culminated in people pouring cold water on the suggestion.

“But the essence [of the suggestion] was to ensure that human rights are protected, irrespective of gender,” she says.



Uncharted territory

Today, marital rape remains an uncharted territory in Malawi, though other Southern African Development Community (Sadc) countries have taken that route, most notably South Africa.

According to Solidarity Helping Hand Women in Action, South Africa holds the title of “rape capital of the world” with reports that “a woman is raped every 17 seconds”.

This, says the organisation, is in spite of the fact that South Africa’s laws make rape an offence. It observes that “The situation is even more dire regarding marital rape – a form of rape that is arguably the least recognised of all forms of rape. One wonders whether the law is enough to deal with what appears to be an attitudinal problem more than anything.”



Attitudinal problem

An October 2012 paper titled ‘Marital rape in South Africa’, published by the Open Society Initiative for Southern Africa (Osisa), indicates that marital rape is “one of the most serious violations of a women’s bodily integrity”.

Yet, according to a 1997 report by the South African Law Commission, it [marital rape] “is a term that many people still have a problem comprehending, with some still describing it as a ‘contradiction in terms’, adding that “The attitude of many – not just in South Africa, but also in Southern Africa, and perhaps the whole continent – is that it is not rape as long as the perpetrator is one’s husband, or known partner”.

Ironically, marital rape is recognised in the definition of gender-based violence given by the United Nations Convention on the Elimination of All Forms of Discrimination Against Women which states that “violence against women shall be understood to encompass…marital rape”.

According to the Osisa paper, “Marital rape is any unwanted sexual acts by a spouse or ex-spouse, committed without consent and/or against a person's will, obtained by force, or threat of force, intimidation, or when a person is unable to consent”.

The paper then cites a 2006 World Health Organisation study on domestic violence. The study found that intimate partner violence is the most common form of violence in a woman’s life – “much more common than assault or rape by strangers or acquaintances”.

According to a Human Rights Watch report titled ‘The costs of marital rape in Southern Africa’, the Sadc Protocol on Gender and Development obliges member states to amend their laws to ensure equal rights for women across a wide range of issues.

Sadc countries include South Africa, Angola, Botswana, Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

However, the report, compiled by Dr Nada Ali, researcher in the Women’s Rights division of Human Rights Watch, observes that there are many cases of resistance in terms of recognising marital rape.

Ali observes: “This stark picture shows exactly how a lack of commitment to fighting domestic violence, marital rape and gender inequality could make fighting the HIV pandemic harder – and could cost Sadc countries universal access to HIV prevention and treatment. This is why women’s groups must continue to press governments to do more to combat domestic violence, until the idea that marital rape is a contradiction in terms becomes a thing of the past.”



Can marital rape work?

According to human rights lawyer, Chrispin Sibande, there are cases where marital rape becomes a straightforward issue in countries where it is criminalised.

“For example, when a husband and wife are on separation [and one of the parties still wants to exercise conjugal rights], it [marital rape] becomes a clear-cut issue,” Sibande says.

Otherwise, the ‘Marital rape in Southern Africa’ report indicates that it is a tall order for marital rape to become a part of the laws in Sadc countries, including Malawi.

“Malawi, for instance, only defines rape outside of the marriage context despite the fact that 75 percent of married women in the country have admitted to being raped by their husbands,” the report says, quoting a 2001 British Broadcasting Corporation report.

Yet another indicator that the road to recognising marital rape in Sadc is winding and half lit.