Till rape do us part – A case for the criminalisation of marital/spousal rape, by Elnathan John

by Elnathan John

One reason for a husband’s legal and social immunity from rape is our cultural attitude toward women in general. A man is viewed as master over a woman- a position reinforced by culture, religion, and even law.

In the past three days I have had cause to be scared for Nigerian women. I had long online debates with at least 30 young Nigerian (married and unmarried) men from different professions: lawyers, engineers, civil servants, teachers on the issue of marital rape. It has taken me a while to get over the shock of some of what I heard to write this article debunking the popular myths surrounding marital rape.

One does not need to have experienced rape to understand the seriousness of rape as a crime. Its highly intrusive, sometimes violent nature makes it capable of deep, lasting damage – more so than many other violent crimes. Often, the perpetrator of rape, (some put the frequency at as high as 90% of the time) is known to the victim – a neighbor, friend, uncle, cousin, husband, teacher, pastor, ex-partner. Rape takes on a new dimension when the victim is raped by someone close – then it even becomes harder to report. [Please note that while rape and sexual violence also happens to men, the focus of this article is marital rape as perpetrated by men]

In the case of marriage, Nigeria law and society has left nowhere for a victim of rape to turn. Our law, by its sad silence implies that a man, cannot commit the offence of rape on his wife. Even worse, many men in our society seem to reinforce this sorry state of the law by their statements and actions. A man said to me a few days ago: Why would a woman whose dowry I paid refuse to give me sex when I demand it?

Section 282 of the Penal Code, governing the North of Nigeria and Section 357 of the Criminal Code, governing the South, both exempt a husband from the definition of the offence of rape. This position of the law is based on the legal theory as expressed by English Judge Sir Matthew Hale in 1680 in The History of the Pleas of the Crown that by their mutual matrimonial consent and contract the wife hath given herself in this kind unto the husband which she cannot retract.” In other words, a wife has by marriage sold herself into sexual slavery and does not have the right to say no.

I can understand how an English judge in the 1600’s would make this statement. But I cannot understand how an educated man in 2012 would repeat and justify it.

Marriage is a relationship of trust- perhaps the deepest level of the expression of trust known to humans. Sexual violence by a person to whom such trust has been given is probably the highest level of breach of that trust. This can be hard to report or otherwise handle. Whereas rape by a stranger may happen once, the victim of marital rape is likely to fear that this will keep happening. I do not need to explain how the anticipation of sexual violence from one with whom you share a bed can be traumatic.

One reason for a husband’s legal and social immunity from rape is our cultural attitude toward women in general. A man is viewed as master over a woman- a position reinforced by culture, religion and even law. I have never been able to get over the shock of Section 55 (1) (d) of the Penal Code which states that “nothing is an offence which does not amount to the infliction of grievous hurt upon any person and which is done by a husband for the purpose of correcting his wife, such husband or wife being subject to any native law or custom in which such correction is recognized as lawful”. This section places women in the same category as children receiving corporal punishment.

There are two grave implications of this section. One, that it permits the husband to beat his wife or otherwise “correct” her as long as he does not injure her. Two, it upholds any native custom that allows such beating or other violence against women. Thus a man, if he considers rape to be a corrective tool for her say, denying him sex may lawfully do so under the law.

A lot of the problem surrounding marital rape also comes from a skewed understanding of what rape and marriage is. I will attempt to make comments on some of these misconceptions as gathered from conversations I have had with Nigerian men in the past few days.

1.       Marriage entitles me to sex. It is my right to demand sex from my wife and as part of her duties she must make the sacrifice and satisfy me when and how I want.

The basis of this unfortunate myth seems to be the idea that a man is superior to a woman. It becomes easier to justify this when a man believes that a woman is a lesser partner in a marital relationship. A man who sees his wife as an equal partner and friend will not turn violent when his wife is tired or otherwise unable to engage in sexual intercourse at a particular time. A loving, caring partner will likely not need to demand sex in the first place.
2.       Forcing my wife to have sex is not rape. I am only taking what is lawfully mine.
Rape is any non-consensual sexual intercourse. I would go ahead to state that I think that it should include not just non-consensual vaginal penetration as the law currently provides but non-consensual oral and anal sex and the penetration of the vagina or anal cavity using objects including but not limited to hands or fingers. Rape is not about sex or love. It is about power, domination, and violence. Just like consensual sex can be an expression of love in a marriage, rape is an expression of violent domination. The rapist is not just “taking” sex. Such a person is inflicting both physical and psychological harm on the victim. Rape has nothing to do with pleasure or enjoyment. It is a crime. Even where there is no struggle because a victim already feels overpowered mentally or physically, it is still rape. What makes it a rape is the forced and/or non-consensual nature of the sex.
3.      Marital rape is a Eurocentric or Western Idea. It is un-African.
Marital rape should be seen as what it is. Rape. Sexual violence. It is not African. It is barbaric and does not belong in any human culture. Even if it is condoned by some of our cultures, it is our place to end those cultures. To use the legal cliché , any culture that is “repugnant to natural justice, equity and good conscience” should be discarded in favor of one that shows respect and dignity to all persons regardless of gender, circumstances of birth, or other differences. We must remember also that culture is fluid. It is not immutable but is a reflection of the ideals of a people over time. Our culture must reflect sane ideals, not practices that make slaves of women.

Sex in marriage should be enjoyed by both parties. It should not be a chore for one party. Healthy sexual relations should be where both parties provide intimacy and pleasure without discomfort, fear or coercion. Where a wife is forced against her will to engage in sex or certain sexual acts, the law should be able to protect her. No contract, marital or otherwise should allow one person to inflict violence on another.

Our legislature must step up and expunge embarrassing provisions in our laws that allow men to legally inflict violence on their wives. Our law must protect vulnerable groups (and minorities) instead of legalizing their oppression.

I must end by saying that I am a Nigerian man. I believe in the equality of man and woman. I believe in the right of a woman to be in control of her own body. I believe in the right of a woman to say no when she does not want sex. I believe in the right of a woman to withdraw the consent she has given at anytime. And I believe there are many other men, like me.
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