Friday, March 1, 2024

The injustice of marital rape exemption

Sexual assault at the hands of a spouse, who is usually a source of trust and care, produces feelings of betrayal, disillusionment and isolation in women.

Yet this is exactly how Lorato* felt when her then husband forced her to have sex twice without her consent. Although the traumatic events took place eight years ago, the pain and anguish in her speech feel as if the event just took place.

Speaking to Arts & Society anonymously, Lorato* says there is a type of rape in Botswana that is not illegal, whose perpetrator would not even be seen as a criminal in the eyes of the law. And that is marital rape. Marital rape is the unsolicited, unwarranted or unconsented sexual intercourse or sexual penetration by the sex organ, other body part or a foreign object within the confines of marriage.

Lorato* says by not making marital rape criminal in Botswana, it sends a message to the women in Botswana that their consent to any sexual activity ceases to matter in the face of their husband’s. The law in Botswana criminalises rape but does not recognise spousal rape as a crime.

“Conscience and justice command that the culprits of such crimes must suffer some punishment. To decode, in Botswana, it is legal to rape a woman as long as you are married to her,” she says.

She also says she is aware of a number of women some of whom are her friends who have experienced sexual assault at the hands of their husbands. Statistics on marital rape are very difficult to come by in Botswana because women hardly report such acts. Botswana Police Service (BPS) has noted that rape victims often declined to press charges against perpetrators. However, in 2019 the BPS Commissioner announced that they would no longer allow the withdrawal of gender-based violence (GBV) cases waiting to be heard by magistrate court.

Lorato* says marital rape is slowly becoming deep rooted and reinforced by cultural beliefs, values, norms and inclinations. “Patriarchy system is to blame because we still have some people who are convinced that women do not need to give consent to their husbands to have sex with them. Sadly, some women in Botswana have lost their self-identity and now subscribe to the dictates of patriarchy. The reason they do not report marital rape is because they do not believe it even exists,” she says.

Psychologically, spousal rape can result in women being genophobic or coitophobic, which is an abnormal and persistent fear of sexual intercourse. According to the World Health Organisation (WHO) women who are raped are twice more likely to be depressed, stressed as well as become more anxious and have suicidal ideations.

By law the minimum sentence for conviction of rape is 10 years’ imprisonment, increasing to 15 years with corporal punishment if the offender was unaware of being HIV-positive and 20 years with corporal punishment if the offender was aware of being HIV-positive. By law formal courts try all rape cases. A person convicted of rape is required to undergo an HIV test before sentencing.

*Not her real name


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