SILENT OR SILENCED? : THE MARITAL RAPE EXCEPTION IN UGANDAN LAW

INTRODUCTION

More than 640million (26%) women aged 15 and older have experienced intimate partner violence globally, and in Uganda over two two-thirds, with 62.8%  reporting experiencing consistent with marital rape and higher rates being observed among women under 40 and those in polygamous relationships. Such staggering figures expose the scale of a problem that continues to exist, largely in silence, within marital relationships. 

Marital rape is defined as, “forced sexual activity demanded of a wife by her husband.” It can also be defined as, “non-consensual sex in which the perpetrator is the victim’s spouse”. ‘Rape’ is described as:  “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, commits the felony termed rape”. The provision insinuates that a married woman can only be raped by someone personating their husband, thereby creating an implied -immunity to criminal proceedings for non- consensual sex with their wives of husbands. 

This article argues that despite constitutional commitments to protection of dignity of women, the continued absence of explicit criminalization of marital rape in Uganda’s legal framework raises significant questions on the adequacy of the law in protection of victims. It examines the legal framework governing rape in Uganda, the cultural and social factors grounded in historical common law principles sustaining marital rape, comparative developments in other jurisdictions, effect of marital rape on victims and consequently, proposes reforms.

THE LEGAL FRAMEWORK GOVERNING RAPE IN UGANDA

The Domestic Violence Act provides for domestic violence to include the act or omission ‘of a perpetrator which causes physical, emotional, psychological and sexual abuse to the victim’. This addresses all forms of violence, including sexual violence but it does not explicitly mention marital rape. The Sexual Offences Bill provided for specific law on sexual offences for the effective prevention of sexual violence but did not expressly prohibit marital rape either and vetoed by President. As seen, The Penal Code Act provides for rape at the exclusion of married women by their husbands.

 Further, ‘marital rape’ classified as sexual violence is penalized by a fine not exceeding 48 currency points, imprisonment for maximum two years or both, or compensation to the victim under the DVA, whilst the maximum penalty for rape under the PCA is death ; this is a telling contrast. 

This article emphasizes the fact that for more than a decade, the Marriage and Divorce Bill, which includes a clause on marital rape to provide clearer legal protections, has been awaiting approval by the Parliament (since 2009). 

Courts in Uganda have occasionally taken progressive positions as regards to marital rape. In Uganda v Yiga Hamidu & Ors, the court observed the constitutional principle of equality between spouses overrules the notion of presumed irrevocable consent in marriage. Musoke Kibuuka J stated, “Section 117 of the Penal Code Act (now section 110 of the Penal Code Act) does not make any exception to a married person… The presumption of consent, even in marriage is wiped out by the provisions of the Constitution as husband and wife enjoy equal rights in marriage”. Nevertheless, the evasion of the direct mention of marital rape and explicit labeling of resembling cases as such leaves the legal status on the offence ambiguous.

CULTURAL AND SOCIAL FOUNDATIONS OF THE MARITAL RAPE EXEMPTION

The Patriarchal System of  African Culture

The immunity can be traced to the common law doctrine as articulated by Lord Matthew Hale, “the husband cannot be guilty of a rape committed by himself, upon his lawful wife, for by their mutual matrimonial and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”. Common law origins viewed ‘rape’ not as a violation of a woman’s autonomy but as a property crime against the male guardian of the woman, with the contractual nature of marriage implying that forced sexual intercourse was little more than a man making use of his own property. The implied-consent theory applied in R v Miller, where the defendant had non-consensual intercourse with his wife pending a petition for divorce against him and Lynskey J held that he could not be guilty of rape due to the implied consent of a wife to have sexual intercourse with her husband.  R v O’Brien reinforced this position, where court held that implied consent could only be revoked by court order or a binding separation agreement whereby subsequent intercourse would then be rape. This absurdly meant that wives gave their husbands irrevocable consent upon marriage and could only revoke it by dissolution of the marriage or through separation.

Ideally, due to the reception of English law into the legal system, one can argue this to have influenced the legal thinking in Uganda. However, the reasoning behind these common law positions simply lays in the patriarchal systemic culture of society, which began before reception. The African traditional view on the role of women in the society and specifically in marriage, as a permanent subordinate to men has an obvious heavy influence on the marital rape exemption. In Uganda v Byarugaba Erikando, Justice Kazibwe Kawumi made mention of the defendant’s actions having roots in one of the forms of negotiating marriage known as ‘okunegura’ among some Ugandan communities where the girl was first kidnapped and defiled before marriage. Judge Batema’s passionate judicial opinion further expounds on this: “It is common to hear rapists pleading not guilty and saying, ‘I only made her my wife’. The women and girls are never treated as full human beings. They are stereotyped as sex commodities or possessions!” 

Additionally, cultural expectations also reinforce male dominance in sexual relations. Traits of aggression, dominance and physical strength tend to be valued, as well as sexual assertiveness, portraying men to “at the mercy of their sexual drives”, while women are expected to be submissive, which creates a conducive environment for marital rape, sexual coercion and sustenance o the exemption by blurring the lines of consent.  Research has shown that a  woman’s history of being dominated, intimidated, or battered by her husband may shape her beliefs as appropriate sex roles for men and women within marriage, for example it is common that many survivors of wife rape believed it was a wife’s duty to submit to a sexual act or intercourse, regardless of their own desires. 

State Reluctance and the Role of Criminal Law

To Gelles, in many cases of rape or physical assault by husbands, women who turn to the criminal justice system for assistance or relief often face maltreatment or ignored by police, lawyers and judges. As a result, many women find no use in reporting their abusers and this is a contributing factor to marital rape to the sustenance of the marital rape exemption. 

A commonly raised argument stresses that the involvement of criminal law in marital relationship is inappropriate. Proponents stress the intrusion of criminal law in such circumstances would destroy the unity of the family, hamper attempts at reconciliation, promote marital disharmony, and ultimately lead to divorce. In 2023, Tororo Woman Member of Parliament Sarah Opendi, revealed that there would be no provisions criminalizing marital rape in the proposed Marriage Bill, arguing that Parliament shall not legislate on private matters, i.e., what happens in people’s bedrooms. However, this argument appears inconsistent because other forms of domestic violence are regulated already under the DVA, which shows the Government’s willingness to engage on some level in regulating private affairs. This makes the reason for absence of explicit criminalization of marital rape in Ugandan legislation quite questionable and consequently exposes the broader tension between protecting marital privacy and enforcing criminal liability.

Interestingly, Finkelhor and Yllo point out that criminal law is not in the business of saving marriages but instead takes task to people who commit crimes, the family chips falling where they will and the “panic some people have about prosecuting a wife rapist boils down to their view of it as a crime not worth breaking a marriage for”. This viewpoint acts as an enabling factor for the continued status of marital rape exemption, at the expense of the existing victims.

EFFECT OF MARITAL RAPE ON VICTIMS

Russell presents a detailed case study suggesting that marital rape may precipitate from a wife’s history of other rape experiences. She describes a situation in which a woman raped by a stranger returned home to rape by her husband, blamed for the actions of the stranger. Furthermore, 7.7% of women are predicted to be in position to be sexually assaulted by an intimate partner in a lifetime. With statistics of a cycle of rape in many women’s lives, there are various far-reaching effects, especially physically and psychologically. 

A study found that of 159 women, 45.9% who were sexually assaulted had higher scores on negative health and gynecological symptoms. Researchers report significant correlations between intimate partner sexual violence and the separate gynecological symptoms of pelvic pain, vaginal bleeding and discharge, painful intercourse, miscarriages, bladder infections, painful urination, and rectal bleeding. Women who have experienced sexual, physical or emotional abuse within marriage are one and a half to three and a half times more likely to test positive for HIV and two to four times more likely to report another Sexually Transmitted Infection compared with un-abused women. The study also shows that the number of sexual assaults (childhood, rape, and intimate partner) significantly correlated with depression and body image.Victimization from intimate partner rape strongly correlates with depression, anxiety and low self-esteem both in females and in males.  

With the drastic effects on women’s psychological and physical health, one would think that this would prompt effective action from the state to the criminalization of marital rape but this is to the contrary.

COMPARATIVE LEGAL DEVELOPMENTS

Various countries have progressively taken a stand to criminalize marital rape. In People v Liberta, the courts in the United States of America struck the marital rape exemption and criminalizing marital rape, upholding this in all the states.  In R v R, where a husband forced his way into the house of his estranged wife’s parents and attempted to have sexual intercourse with her, the court held that it was indeed possible for a husband to rape his wife, thereby criminalizing marital rape in England. However, as aforementioned, the courts in Uganda have progressively decided on such matters, evading the direct mention of marital rape and thus leaving ambiguity in the status of the law on the matter. 

It is true that Uganda has taken some steps to uphold women’s rights and dignity both publicly and privately for example through ratification of international instruments that advocate for the same. For instance, UN Universal Declaration of Human Rights 1945 (UDHR), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), The African Charter on Human and Peoples’ Rights (ACHPR) and many more which all advocate for the right and fair treatment of women in society. However, the inability of domestic law to fully recognize and criminalize marital rape waters down the effect of these instruments in the country. 

RECOMMENDATIONS

The biggest step in the right direction, therefore, for Uganda would be legislation reformation to include marital rape as an offence expressly. The continuance and intensifying of judicial activism against marital rape, coupled with sensitization campaigns to spread awareness can force the state to address the patriarchal cultural values present in Uganda. This would result in a shift into progressive laws for the benefit of all, but especially for the empowerment of women, to ensure that social change lasts. 

CONCLUSION

Although Uganda is rising against the challenge of marital rape, we cannot and should not laud it in the 21st century, with existing contention on the issue of marital rape whilst leaving such matters to the discretion of court. It is for this reason perhaps that the silence continues. This all begs us question: is the law silent, or are the victims silenced?

BIBLIOGRAPHY

1. Campbell J. C and Soeken K. L, ‘Forced Sex and Intimate Partner Violence: Effects on Women’s Risk and Women’s Health’ (1999) 5(9) Violence Against Women 1017.
2. Clayton R, ‘A Critical Legal Analysis of Marital Rape in Uganda’ (2022) 11(1) International Human Rights Internship Program.
3. Finkelhor D and Yllo K, Licence to Rape: Sexual Abuse of Wives (Free Press 1985).
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7. Hale M, The History of the Pleas of the Crown (E Rider 1763).
8. Han T.C, ‘Marital Rape – Removing the Husband’s Legal Immunity’ (1989) 31(1) Malaya Law Review 112.
9. Mengo C, Okumu M, Ombayo B, Nahar S and Small E, ‘Marital Rape and HIV Risk in Uganda: The Impact of Women’s Empowerment’ (2019) 25(15) Violence Against Women 1783.
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REFERENCE(S):

STATUTORY LAW

1. The Penal Code Act, Cap.128
2. United Nations Universal Declaration of Human Rights
3. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
4. The African Charter on Human and Peoples’ Rights (ACHPR)
5. Domestic Violence Act, 2010
6. Sexual Offences Bill, 2019

CASE LAW

• Uganda v Yiga Hamidu & Ors (Criminal Session Case 005 of 2002) [2004] UGHCCRD 5 (9 February 2004)

1. R v Miller [1954] 2 All ER 529
2. R v O’Brien [1974] 3 All ER 663
3. Uganda v Byarugaba Erikando (Criminal Session Case No. 361 of 2013) [2017] UGHCCRD 116 (15 August 2017)
4. Uganda v Lomoe Nakoupet (Criminal Case No. 109 of 2016) [2019] UGHCCRD 73 (13 February 2019)
5. People v Liberta 64 N.Y.2d 152 (1984)
6. R v R [1991] 4 All ER 481

WEBSITES

1. UN Women, Facts and figures: Ending violence against women, https://www.unwomen.org (25 November,2014)
2.  Making a case for criminalizing marital rape – The Observer
3.  Wanjala CW. Marital rape: Is it a crime or a conjugal right? Daily Monitor; 2013 March 16. http://www.monitor.co.ug/SpecialReports/Marital-rape—Is-it-a-crime-or-a-conjugal-right/688342-1720960-item-00-wujcet/index.html