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Thursday, August 12th, 2021 19:06 | By
Does saying ‘I do’ amount to consent for the rest of one’s life?

Kenya has managed to pass laws that address sexual and gender-based violence-related cases. 

The Sexual Offenses Act 2006 indicates what constitutes sexual offenses, and provides for prevention and protection of all genders from illegal sexual acts.

But while the Act talks of attempted rape, rape, and sexual assault, it does not address marital rape, where someone uses violence or the threat of violence to force their wife or husband to have sex. It is non-consensual intercourse.

The right to be free from coercion and violence in relation to sex is a human right as defined in several regional and international laws Kenya is a signatory to.

These laws include the United Nations Convention on the Elimination of All Forms of Discrimination Against Women and the Protocol on the Rights of Women in Africa.

However, Kenyan law fails to prohibit rape within marriage. While physical violence by a spouse against a spouse is considered a criminal act, sexual violence in this context  is not included. 

Last year during Covid-19 lockdown period, the National Council on Administration of Justice reported a significant rise in sexual offenses in many parts of the country. 

Jennifer Wafula 28, who is still finding solace at a safe house in Nairobi, lives to tell the constant ghastly nights she has had to endure, especially during lockdown.

 “My husband, unfortunately, lost his job, and drinking became his full-time job.

It was a constant push and pull when having intercourse, which then led to physical fights and eventually, he would forcefully find his way.

I lost my peace. It eventually became too agonising for me to bear—the same pain every night,” Wafula shares. 

No longer an enjoyable experience

According to the Kenya Demographic and Health Survey 2014, 55 per cent of women and 37 per cent of men reported their spouses as perpetrators of sexual violence.

Marital rape is one of the under-reported violent crimes because it is socially tolerated.

Some abused women are afraid to report it because they rely financially on their husbands for their upkeep and children’s maintenance. Others are unable to speak out due to fear and humiliation.

Thirty-year-old Rachel Akinyi, a shoe seller, says her polygamous husband and  employer forces her into having intercourse, despite her resisting several times.

 “I no longer enjoy having sexual intercourse with my husband; it’s painful, abusive and when I try to resist, it sparks arguments, which I don’t want to expose the children to. So normally I give in. He believes this is his conjugal right,” she reveals. 

Akinyi is among many married women who continue to stay in abusive marriages, despite the horrific nights they have to relive daily.

Worldwide, studies show that health problems caused by marital rape include HIV and other sexually-transmitted infections, vaginal bleeding or infection, genital irritation, pain during sex, chronic pelvic pain, and urinary tract infections. 

Physical violence associated with marital rape can also lead to complications during pregnancy, resulting in health problems for both women and their children.

Terry Waluvengo a private legal practitioner says it’s a disservice to women to live in a society that ignores marital rape. 

“It is high time we promote dignified life for our women, especially by offering them protection.

This will save them from infections and mental issues caused by marital rape. Mental anguish, depression and anxiety are all effects of suffering in silence,” she says

Where do we draw the lines

Waluvengo says  the laws need to be reviewed to address loopholes in sexual violence, especially marital rape. 

“Sex is presumed to have consent because of the institution of marriage. Our courts have continually interpreted the ‘I do’ during weddings to mean free consent.

Technically, it’s impossible to refer to forced or non-consensual sex within marriage as rape,” she explains.

Waluvengo continues to say that while marital rape may affect both men and women, statistically, it is women who seem to be on the receiving end thanks to cultural perceptions and expectations that require them to be submissive to the husband. 

“I suggest the government includes marital rape as a form of rape within the Sexual Offenses Act by removing the exception or have it as a stand-alone clause of crime by enacting an amendment to the Act, specifically prescribing marital rape,” she adds. 

 Susan Kahema, a counselor shares that the community needs to acknowledge that marital rape happens. 

“Rape occurs in different ways; there is battering during rape and  sexual intercourse without consent and usually.

The problem comes when we can’t draw the line between sexual intimacy and marital rape.

It is a major concern that needs to be handled by the community. It should be handled as a multidisciplinary approach, such that doctors, psychologist counsellors, and lawyers are all in the know,” she adds. 

Kahema says the government needs to come up with proper policies and guidelines on how such cases should be handled. 

“When a victim goes to report the offender, the police should be able to offer a listening ear, instead of judging them without considering their feelings.

The government, I feel needs to offer basic counselling skills, to them as well,” she says. 

 “Both the victim and abuser need to receive support. It could be that the person is suffering from depression, low self-esteem or some one is struggling with power and control.

The victim on the other hand might end up depressed or might suffer from anxiety disorder and also low self-esteem.

Both should explore and go through the journey to rediscover and hopefully find healing,” Kahema says in conclusion. 

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