Marriage in Kenya in itself presupposes consent to sex within the marriage. The day a couple exchanges vows, it is presumed that one has given consent to the enjoyment of conjugal rights. It is no wonder a marriage cannot be completed without consummation.
Unfortunately many a time married people find themselves in situations which would otherwise amount to rape within the marriage.
Rape is a crime under the Sexual Offences Act. 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; or the consent is obtained by force or by means of threats or intimidation of any kind.
A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than10 years but which may be enhanced to imprisonment for life.
In Kenya, we do not have any provisions anywhere under matrimonial laws or otherwise that makes or define marital rape.
When a spouse forces themselves into or onto you, naturally this has very stigmatising and dehumanising effect since force or violence has been used in the process. Naturally the spouse ends up feeling abused, wasted and fear is naturally left in their mind.
It is a form of inhuman and degrading treatment. It is worth noting that any of the spouses can be a victim. The question is: do we criminalise marital rape and what are the ramifications? Many spouses are suffering in silence for the sake of protecting the marriage. The foregoing can form a ground for divorce.
The other question which is of great concern is HIV/Aids. We have the HIV/Aids Prevention and Control Act in Kenya which criminalises transmission of HIV. Sometimes spouses who find themselves as victims of marital rape will contract Aids from the spouses who are forcing them to have sex.
The million dollar question is: do we or do we not criminalise this act which would otherwise amount to marital rape? Will this help upheld the dignity of the spouses given that the constitution provides that parties in a marriage are equal and are entitled to equal protection before the law under Articles 27 and 45? How will either spouse prove that the act of rape and not a loving natural marital act occurred? Will such legislation water down the marriage instead? How much are we going to achieve if we criminalise the same through the statutes. Should we leave the spouses to sort out their internal issues? Will legislation amount to giving the state too much leeway to micro-manage the affairs of the family unit?