Development

Should Malawi criminalise marital rape?

Gender experts argue that while the proliferation of domestic violence legislation worldwide is a positive and much-needed development, the explicit criminalisation of marital rape needs to be central to these legal reform initiatives—ensuring that women’s rights are fully protected even within marriage.

Almost 20 countries in Sub-Saharan Africa, so far, have taken a step toward criminalising marital rape. Malawi is yet to take that step.

Marital rape should be criminalised
Marital rape should be criminalised – Pic by Deccan Chronicle.

However, there is raging debate in the country regarding the question of criminalising marital rape. And it is a debate that has not started today.

In 2001, women activists in the country pushed enactment of a law that would make marital rape a criminal offence.

The Malawi Chapter of Women in Law in Southern Africa (Wilsa) even drafted a bill on the criminalisation of marital rape.

The then chairperson of Wilsa  Seodi White said the proposed law would reduce occurrences of this form of domestic violence.

She argued existing laws are silent on the problem.

“Courts have generally viewed the occurrence of rape, as described under the penal code, as not applying to married couples.

“The exemption of husbands from prosecution under the offences of rape, therefore, totally fails to provide equal protection for all women,” she said.

However, Judge Duncan Tambala of the Supreme Court of Appeal argued that the country’s laws do 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.

Tambala said 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,” he explained.

Since then, the marital rape debate has barely gone to sleep. There are still protracted views regarding the need for criminalising marital rape.

Annie Banda, national coordinator of Coalition of Women Living with HIV/AIDS (Cowla), argues that marital rape, also known as spousal rape, is a form of partner rape, of domestic violence and of sexual abuse.

“Often, the husband and even the wife do not define it as a form of sexual violence, because women are expected to be sexually available to their husbands after marriage,” she adds.

Banda explains: “Marriage does not mean that women give up their decision-making power over their bodies or sexuality. Any time a man forces a woman to have sex against her will, whether they are married or not, it is rape,” she says.

A recent study by Cowla revealed that sexual abuse was reported in 41 percent of the 371 respondents and the most common sexual violence type is forcing a partner to have sex without a condom.

To further elaborate the levels of violence that women are experiencing in Malawi, a research instituted by the Malawi Network of People Living with HIV/AIDS (Manet+) in 2010 shows that 47.6 percent of women living with HIV are physically harassed compared to 15.1 percent of their male counterparts.

However, despite the evidence that women living with HIV are coerced into sex without condoms against advice by medical personnel as a way of positive prevention, there is no legal protection of women from such abuse as marital rape is not considered an offence in Malawi.

In response Cowla has begun advocating for the need to criminalise marital rape.

“We see that our women who are already vulnerable continue to suffer and the intervention we put in place does not hold water due to the challenge of marital rape.

“It is not time that government and other stakeholder bury their heads in the sand.

In many developing countries and Malawi in particular it is believed—by both men and women—that a husband is entitled to sex any time he demands it and that if his wife refuses him, he has the right to use force.

This is the thinking we need to depart from if we are to win the fight against Aids and stop marital rape,” says Banda.

She adds that she understands the private locus of domestic violence means that proof of sexual assault by a partner is a difficult to obtain.

“However, we believe that going by a common law definition of rape, which is against the spirit of the 1994 Constitution, is defeating the very same purpose of human rights the Constitution of Malawi was made to protect,” she says.

Experts argue that failing to unequivocally criminalise rape within marriage amounts to a failure to address gender based violence.

Some, of course, have argued that criminalising marital rape would not guarantee lower rates of violence against women.

However, Banda says while it is true that there can be no such guarantee, the State nonetheless has a duty to ensure that women are granted legal protection from this violence, which is a necessary first step towards addressing it.

“The explicit criminalisation of marital rape is a critical step towards promoting women’s rights and safety within marital/spousal relationships.

It is recommended as a best practice by the UN Handbook for Legislation on Violence against Women and the Council of Europe.

The African Commission on Human & Peoples’ Rights and the UN Committee on the Elimination of Discrimination Against Women have also called on specific states to criminalise marital rape and all forms of violence against women,” she said.

 

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One Comment

  1. criminalise marital rape is an absurd and attack the autonomy and strenght of family as the fundamental institution in society.

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