Question of criminalising marital rape

Is there really something like marital rape? If it is there, is it feasible to criminalise it as a means to curb violence against HIV positive women? Ephraim Nyondo brings up the debate.

At a meeting with Tomasi Village Support in Thyolo, a certain woman—married and diagnosed with the virus in 2010—shared quite a moving tale.

“He [her husband] comes home at the dead of the night, always drunk. Even before he takes his meals, he demands sex. With our status, we are always advised to use condoms. He rejects, and he rejects with scorn. Often, because of his outbursts, I give in,” she explains.

But there was a day she dared to stand her ground.

“I insisted he won’t do it if he doesn’t use a condom. Trouble erupted. He began by telling me off before a wave of beatings. I tell you I was beaten and left for dead. After that, he left, and came a day later,” she explains.

The woman explained that they are still married. The elders, after a series of discussion, reunited them. She narrated how she was accused of failing to meet he conjugal obligations as a wife and warned against repeating the same. But nobody gave her a chance to tell a story. But even if they gave her the chance, would she have explained the gist of it?

“These are difficult stories to explain. Though we advise each other to report to police or the chiefs, as a woman, where do you start? It is better we suffer in silence than being a model of shame in the village,” she says.

The woman’s story is one that symbolises what gender activists call marital rape—a form of intimate partner violence on women living positively.

According to Annie Banda, coordinator of Coalition of Women Living with HIV/Aids (Cowla), marital rape, also known as spousal rape, is non-consensual sex in which the perpetrator is the victim’s spouse.

“It 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.

But can there really be something like marital rape?

History shows that the concept of marriage includes within it conjugal rights. And biblical teaching of St Paul attests to this.

“Let the husband render to his wife the affection due her, and likewise also the wife to her husband. The wife does not have authority over her own body, but the husband does.

“And likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except with consent for a time that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control,” writes Paul in his first letter to the Corinthians.

Rooted from such teachings, marital rape was considered to be impossibility. This was codified by Sir Matthew Hale in the 1736 publication of his work History of the Pleas of the Crown. Within this work, Hale wrote that marital rape could not exist.

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract,” he writes.

Culturally, the concept of marital rape is also an enigma to the locals.

“There might be disagreements here and there within marriage, but I just can’t see a man raping his wife. It can’t be possible,” says T/A Mkumbira of Zomba.

Mkumbira insights are well augured by Limbani Mwayila, a local from Magomero, Chiradzulo.

“For couples that are living positively, it is important they agree to use condoms as advised by medical experts. Though it is wrong for a husband to forcefully sleep with his HIV positive wife without a condom, I don’t see the action as rape. Married people in our culture have a right to have sex. There can’t be rape in such a context,” he says.

Additionally, the Marital Immunity Rule under the common law definition of rape, which again is the statutory definition of rape under the Penal Code, that a husband could not be guilty of raping his wife, is a classic example in which a wife is still treated as her husband’s property.

Despite that, Banda maintains that marital rape is real.

“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.

However, despite the debate on the feasibility of marital rape, forced sex among HIV positive couples is rampant and it affects the health of victims.

A recent study by Cowla has 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% 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 as an offence in Malawi.

In response, Cowla has begun advocating 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 stakeholders 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. This is the thinking we need to depart from if we are to win the fight against Aids and stop the marital rape,” says Banda.

Banda adds that she understands the private locus of domestic violence means that proof of sexual assault by a partner is a very 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.