Botswana’s Lady Justice must be a married man. How else do we explain that she can not mention the words “marriage” and “rape” in the same breath. While married women complain of marital rape, Lady Justice, like most married men, dismisses it as a silly oxymoron like a square circle. And Batswana married women are suffering the worst of it.
Sometime in 2003 a Gaborone man tracked down his estranged wife who had fled from home citing abuse. He abducted her and repeatedly raped her. The man never saw the inside of a prison cell. The then Broadhurst Magistrate Kediemetse Mogotsi ruled that that a husband can never rape his wife.
Three years later in 2010 an HIV positive Gaborone man started demanding unprotected sex from his HIV negative wife and forcing himself on her. The man should be serving the last two years of the mandatory ten year rape sentence. The husband, however never did any jail time.
The sad truth is that marital rape probably occurs more often than we’ll ever know. Wellington Mhembere of Jonas Attorneys says “First of all rape is rape and as in the Penal Code section 142 (II) anyone charged with the offence of rape is liable to be sentenced to a minimum of 10 years imprisonment or to a maximum term of life imprisonment” He says in the case of marital rape it gets a little tricky because when a couple gets married they both submit to conjugal rights therefore it is often hard to prove that it was rape or that it wasn’t consensual.” Marital rape is not a crime punishable by the law in Botswana.
Dr Sethunya Mosime a senior Sociology lecturer at the University Of Botswana says marital rape does exist. “Often times the viewpoint is that marriage is sort of a blank cheque where the woman consents to all sexual practices at any given time and in addressing gender based violence you find that most of the violence occurs at home whether done by the wives or the husbands. We have to understand that even in marriage, if the other partner does not consent to it then it is rape, every sexual act should be consensual.” She adds that even though sometimes in marriage sex is used as a form of punishment where the wives sometimes deprive the husbands of their needs it should never lead to things being forceful. No means no.”
Part of the social norms contributing to rape within relationships is the myths that surround marital rape; that rape can only be committed by a stranger and a husband cannot rape his wife or that a woman was not really raped if she did not fight back and did not suffer any physical injuries.
Reporting rape, particularly marital rape is not easy for survivors. If a case is reported, women have to deal with attitudes of some police as well as the public. The general idea is that, it is not quite as serious, that somehow if you know the person, the shock is not as great as if it were a stranger and that it is not worthy of prosecution. People also treat the incident as less serious because the survivor has given her permission on a previous occasion. Women also fail to report rape because of their financial dependence on their husbands. Wives who experience sexual violence by their husbands sometimes feel obliged to suffer acts of non-consensual sex with their husbands in return for the food and shelter they provide. Survivors of marital rape faces all the same challenges of those reporting other cases of rape but with the addition of the idea that marital rape is not rape at all.