Marital rape is sex without consent in which the perpetrator is the victim’s spouse. It is a highly controversial subject; this is partly because it occurs between spouses who have emotional, legal, social and economic ties.

This web of relations is sometimes misinterpreted to mean that a spouse is entitled to unreserved rights to sex.

Marital rape, therefore, presents peculiar challenges in its enactment and enforcement as a law. It seems fictitious where the law provides that sex is a conjugal right of spouses.

This is further complicated by marriage vows which guarantee sex at all times. In addition to this, some customary laws dictate that women should not consent to sex even after marriage.

Indeed in some cultures, it is considered normal practice for a man to initially rape his wife! Payment of bride price provides further justification for the right to sex.

Given this background, debate on marital rape is sometimes considered unrealistic or only relevant when a couple is seriously considering separation or divorce.

On the other hand, prosecution of marital rape presents several challenges. For example:

Can there be free consent to sex when a spouse is economically dependent on another?

Who would be a witness in a case of marital rape. The act is done by two people in privacy. 

If the perpetrator is imprisoned or fined, would the marriage go on thereafter?

But one should look at the social consequences of such a provision, spouses suing each other over sex; paying fines and damages!

Then what happens to the marriage after that? Wouldn’t that marriage be over and done with?

And how do the children hear that their parents are in court over sex and that Mummy has won the case and Daddy has been jailed for two years because he forced Mummy into sex? Disaster, if you ask me!” What is the basis for proposing such a law? Indeed what has changed marital rape from being fiction to a fact? 

The main reason for this change is the development of the concept of human rights. For a long time, common law, on which our legal regime is based, treated the concept of marital rape as impossible. 

Practical realities point to cases of women who have been re-admitted after child birth because their spouses could not wait for them to heal properly. Several women have been raped when they refuse to have sex for fear that they may contract HIV. In most cases, marital rape is part of an abusive relationship. Marital rape is tolerated partly because most women are economically insecure while some believe it is a man’s prerogative and partly because there are no legal remedies.

The right to full and equal dignity is not taken away by marriage vows nor is it negated by bride price. Thus, the proposed marriage law provides the right to spouses’ conjugal rights which includes sex. The proposed law is logical because the right to sex as conjugal right is not absolute.

We must promote and protect human rights of all in both private and public spheres irrespective of gender or status. This need was confirmed by a contradictory statement of one man, who said: "I can rape my wife if she refuses to have sex with me but no one should have sex with my daughter without her consent.”

It never dawned on him that his wife is someone’s daughter and that one day his daughter could someday be someone’s wife!

The writer is an MP in the East African Legislative Assembly
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