A friend of mine normally says you can tell that impunity is rife in Kenya by just looking at how badly we drive on our roads. And I always add that if you want to know that marital rape exists, just look at how some drivers get onto the road. Mostly it is from the wrong side with no warning or no respect for other motorists.
Just because they got the license they think they don’t need to signal intention or permission to enter. This is exactly how marital rape happens. Some people argue that marrying a woman and paying her dowry is enough permission. You cannot seek permission for what belongs to you thereby treating women as part of their movable objects – just like a chair or table.
Milkah (not her real name) has been married for 14 years. She has four children. Her husband has severally forcefully penetrated her anus and the first time he did it she bled from the injuries and was in intense pain. She needed money to go to hospital but he denied her. He claimed that if she went to hospital she would be reporting him. She was scared he would do this again so she reported to the police and he was kept in custody for one night.
He pleaded with her to forgive him and she did. She asked the police to let him go. This marked the beginning of her nightmare. Milkah remembers how in one occasion she screamed for help as he brutally raped her through the anus. The only people who came to her rescue were her children.
She tried to treat herself with salt and warm water but she realised she was not getting any better. She asked him for money to go to hospital but he refused.
She then approached the chief who correctly referred her to the police station. She finally made it to hospital, obtained a medical report and he was arrested. The accused in this case was charged with the offence of committing unnatural offence by forcefully penetrating the anus of his wife on several occasions. As part of the prosecution witnesses were the chief, the doctor, the investigating officer and the complainant. The prosecution was successful and the perpetrator was convicted of unnatural offences under Section 162 of the penal code which defines anal sex as an unnatural offence. He was sentenced to 10 years imprisonment.
This was in 2009, by which time the Sexual Offences Act was already in operation. In essence, the Sexual Offenses Act defines rape to include forceful penetration through the anus. If Section 3 of the Act which defines rape and stipulates what sentencing one can get for rape had been used as the charge in this case, then the perpetrator could have been sentenced up to life imprisonment. It is also important to note the case was by and large treated as an unnatural offense without much reference to the fact that it was in fact marital rape.
Society is yet to accept that acts of marital rape happen. Denial that such violations take place within marriage is justified using African culture to explain that once a woman is married she must always provide sex to her husband without fail. Some people assert that recognising that marital rape exists will shake the institution of marriage. The same scrutiny is not applied to those who commit the crime as the ones responsible for shaking marriage.
These are the double standards of patriarchy that allow men to commit heinous acts on women while at the same exerting sanctions on women such as through female genital mutilation and honour killings. There are times refusal by women leads to varies degrees of physical violence. A number of women have presented that their experiences of intimate partner violence are linked to sexual demands by their partners.
Marital rape is a thorny issue. I remember in 2006 when it was then a Bill being discussed in parliament, MPs raised concerns about sexual harassment and even the possibility of reporting of rape being abused to gain political mileage or to “finish one politically”. Eventually the language of marital rape did not sail through as MPs expressed their apprehension. When it comes to marital rape, the issue of dowry becomes a prickly one too. It is used to justify various forms of violence against women. By not questioning marital rape on the basis of dowry, we run the risk of glossing over the fact that the very sources of abuse may themselves be some form of “tradition” invoked to perpetuate or maintain inequalities that result in maintaining violations of human rights of women.