Definition of marital rape by the Kenyan legal framework

  

Date Posted: 10/8/2011 4:26:16 AM

Posted By: luyali  Membership Level: Silver  Total Points: 120

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Definition of Rape

Rape may be defined as sexual intercourse with a person without their consent. This may be as a result of physical force or threats, or because the person was unconscious or asleep, or because consent as to the nature of the act was obtained through fraud. It is also rape if the person is mentally incapable of understanding what is being consenting to. The defendant must be proved to have known that the person did not consent or have been reckless as to consent. It may also be defined as a forceful sexual intercourse with a person against that person’s will. Historically it was defined as unlawful sexual intercourse with a woman without her consent.

This definition failed to capture the modern realities of rape where men are also subjected to rape and there is molestation by people of the same sex. Presently though most statutory definitions of rape have no reference to the gender of the victim. However it may be noted that the greatest majority of victims of rape are women and this may be the reason why rape has often been seen as a crime against the body of a woman.
In Kenya several legislations attempt to define rape. For instance the Penal Code defines rape by stating as follows:
‘... Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of the felony termed rape...’
The Sexual Offenses Act defines rape as follows:
‘…A person commits the offence termed rape if he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs…the other person does not consent to the penetration…’

From this the elements of rape are highlighted as absence of consent or forceful or fraudulent consent, bodily harm or threat to bodily harm and penetration. Such act should be a sexual act.
These definitions cause difficulties when trying to define marital rape or rape within the marriage context. It is generally believed that marriage gives automatic consent to sexual relations. This automatic consent concept stems from the chief purpose of marriage which is procreation. For this purpose of procreation to be achieved then sexual intercourse must occur and marriage religiously and culturally gives capacity to parties to exercise their conjugal rights.

In trying to define marital rape we have to be cognizant of cultural and religious dispensations. Law is highly influenced by morality. In Kenya the African values and customs prescribed social norms and rules. For instance one would not have sexual intercourse unless he/she was duly married. No relationship that is sexual would exist outside the marriage institution.

Marital rape may therefore be defined as any unwanted sexual acts by a married partner or a former married partner committed without consent or against that partner's will. This may be obtained by force, or threat of force, intimidation, or when a person is unable to consent. These sexual acts include intercourse, anal or oral sex, forced sexual behavior with other individuals, and other sexual activities that are considered by the victim as degrading, humiliating, painful, and unwanted. This definition conflicts with the traditional concept that marriage gives an automatic consent. It reflects the realities that there are situations where one cannot enjoy his or her conjugal rights. These situations may include; where the partner is suffering from an ailment, where there is fear of contraction of a terminal illness from the other partner, physical injury of one of the partners, advanced stage of pregnancy and any other related scenarios that may lead to the other partner not being able to necessitate the enjoyment of conjugal rights. Marital rape happens frequently, causing health problems, pain and distress to abused women. Children in households where marital rape occurs often suffer from the psychological effects of witnessing violence, and because it can undermine the ability of their mothers to care for them. The 2008-09 Kenya Demographic and Health Survey - Preliminary Report shows that 13 per cent of married are being raped by their male partners.

Marital rape is one of the under-reported violent crimes because it is socially tolerated. Some abused women are afraid to report the violence because they rely financially on their husbands for their upkeep and children's maintenance. Others feel unable to speak out due to fear and humiliation.
The intermingling of traditional and modern meanings of such concepts should not be underestimated nor easily overlooked when addressing the issue of rape among married couples. Research, prevention, intervention, and treatment programs must therefore be sensitive toward culturally appropriate approaches to this issue and must be mindful of the language used to express the various experiences and perceptions in order to gage an accurate assessment of the prevalence of rape among married couples.

The legal framework of marital rape in Kenya

Violence against women is prohibited in international human rights instruments and within Kenya's Constitution and national legislation. Before the enactment of the Kenyan Constitution 2010 the government had consistently stated its intention to promote gender equality through national legislation but had failed both to implement constitutional provisions and domesticate international or regional human rights treaties that promote and protect women's rights.
The Kenyan laws that were in force discriminated against women and the government had appeared reluctant to support legislation before Parliament which would address issues of concern to human rights and women's organizations in Kenya.

International Law

The international human rights standards which prohibit violence against women include several treaties which Kenya has ratified - including the African Charter on Human and Peoples' Rights , The International Covenant on Civil and Political Rights , the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of All Forms of Discrimination against Women , and Convention on the Rights of the Child - and under which it therefore has legal obligations.
International standards recognize that the denial of equal rights to women reinforces violence against them in detention and at home. Although the issue of gender-based violence is not explicitly addressed in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) ratified by the Kenyan government in 1984 - it is fundamental to its most basic provisions. The Committee charged with the responsibility of overseeing the implementation of the Convention by states parties affirmed, in its General Recommendation 19, that violence against a woman constitutes a violation of her internationally recognized human rights.
This had been articulated in the Platform for Action of the Fourth World Conference on Women in Beijing, 1995, which stated that
"...violence against women both violates and impairs or nullifies the enjoyment by women of their human rights and fundamental freedoms. The long standing failure to protect and promote those rights and freedoms in the case of violence against women is a matter of concern to all States and should be addressed.

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