Can rape happen in marriage?

Sometime last year, the Coalition of Women Against HIV and Aids (Cowla) organised a meeting in Traditional Authority (T/A) Bvumbwe in Thyolo.

Cowla is implementing an HIV and Aids project aimed at reducing HIV infections and promoting positive living among couples.

The meeting—which was organised to raise awareness on how gender-based violence (GBV) is fuelling HIV spread among couples—brought together some influential people in the area such as chiefs, religious leaders, local councillors, the youth, teachers and health workers.

While sharing her experience on how GBV HIV spread, a woman—who identified herself as Sera Namithulu and looked to be in her mid-40s—stirred controversy.

The woman, whose husband died in 2010, revealed at the meeting that she is HIV-positive. She courted controversy when she claimed to have been infected by her husband who ‘raped’ her.

“He always came home around midnight or in wee hours. He could not sleep without demanding to sleep with me. It was quite irritating to be waking at night when you are sleepy just to sleep with somebody who is drunk and is yelling at you to get what he wants,” she started.

Though she would always give in, a day came when she had finally had enough.

“I challenged him that ‘today I will not give in’. He started yelling as usual to intimidate me into submission. I covered myself in a blanket. He grabbed me by the hand and pushed me out of the bed. I began to run out of the bedroom. He kicked me with his leg and I fell down. He then jumped on top of me, tore my clothes and raped me,” she said.

After the incident, he walked out.

But days later, she added, they were reunited by elders. She narrated how she was accused of failing to meet her conjugal obligations as a wife and they warned her against repeating what she had done.

Despite that, four years after the death of her husband, Namithulu was uncompromising during the meeting that she was consistently raped by her husband—something which did not go down well with some attendees.

“How can a husband rape his own wife?’ stood up one man in his 50s, who identified himself as Jalafi.

He added: “That is complete nonsense. When you get married, you become one body. Sex, as a result, is non-negotiable. It should happen whenever one of you wants it. I thought that is what we are advised? Now where is the rape thing coming from?”

Jalafi’s comments drew a wider applause mostly from men. There was an aura of excitement among men and some silence among most women.

Yet one man—a secondary school teacher—stood up and said: “I think we need to, first of all, ask one of the chiefs here how they define rape. We are asking them because they are the ones who settle cases,” said the teacher.

In his response, Group Village Head Mpenda said although he handles rape cases now and again, he had never handled anything close to rape between couples.

“Rape, to me, is something that happens outside marriage. I have had such cases before. A man raping a girl. A boy raping a girl and all that. Not a husband raping his wife. It is very strange,” he said.

The discussion in Thyolo on marital rape is just a part of one of the oldest debates in the fight against GBV. There is still no agreement with regards to rape in marriage—also known as spousal rape.

In fact, even on social networks, especially among the urban youth who are mostly exposed to modern thinking, there is hardly an agreement on marital rape.

The Nation carried a snap survey on Facebook asking ´Can there be rape in marriage?’, and the results were interesting. Out of 84 people that commented, all the 24 women who commented agreed there is marital rape. However, out of the 60 men that commented 21 agreed of marital rape while the remaining 39 outrightly rejected it.

The argument of those against rape in marriage mostly bordered on cultural and matrimonial assumptions of marriage.

For instance, Rawjaz Siula, a columnist, argues that it must be underlined that this so-called ‘rape in marriage’ was systematically muted in African cultural terms. He added that it is the Western high-powered legal philosophies that is amplifying marital rape and trying to criminalise it.

“What is marriage? What are the conjugal roles and responsibilities of husband and wife in our African sanity? Perhaps my argument might lack citation, since most of our issues are orally passed as opposed to the Western stuff, which is mostly written,” he wrote.

Another contributor, Odillo Mthulo, concurred with Siula: “Rape is a word which does not and should not exist in marriage. Those who use it are just running away from marital duty, and the rape only happens in marriages that are already troubled, not working marriages. You can do research.”

However, those who see possibility of rape in marriage underline consent as key.

For instance, lawyer Bright Theu—in an apparent response to Mthulo—argued that if rape does not happen in working marriages, it is because the two understand and respect each other so much so that when one partner is not willing to have sex, the other does not force his way.

“You see, in marriage there are still two individuals with two separate minds. They may not always agree on everything,” he wrote.

On his part, Steve Iphani, wrote that it is obvious that rape does take place in many marriages.

“The problem is that it seems our laws do not call it rape in the context of marriage because they embody the view of many in Malawi who think that one cannot rape ‘oneself’ based on the view that a husband and wife are declared as one body by our church ministers upon marriage. This abstract ‘one body’ view is, unfortunately, not realistic because there is evidence suggesting otherwise,” he wrote.

However, while starting by the legal definition of rape as ‘carnal knowledge of a woman without her consent’, lawyer Juliano Kanyongolo asked: Can sex, within the confines of matrimony, be unlawful?

“If yes, like in the case of judicial separation, only then can we say there is rape if the woman does not consent,” he wrote.

He added: “Consent in holy matrimony is assumed from the inception of marriage—and I believe the same can be imported from the words ‘for better for worse’. For what is marital love if you take out this central incidence of marriage?”