A Senior Law Lecturer at the University of Botswana (UB), Obonye Jonas, is calling on Parliament to lead the way ahead of the courts and criminalize rape in marriages.
Marital immunity implies that rape within a marriage is not recognized by the courts, based on the premise that it is impossible for a husband to rape his wife.
“Marital rape violates the woman’s right to bodily integrity, self-determination, freedom and the harm is not alleviated or assuaged by the fact that marriage exists between the parties or that the harm occurred in the comfort of the marriage bed,” contends Jonas.
Jonas’s latest sentiments, expressed through a scholarly article,┬á are in support of a subject that has been preached by local Human Rights organizations, such as Ditshwanelo, SADC Gender and Protocol Alliance, BONELA, Gender Links as well as Emang Basadi, amongst others.┬á
In the academic paper, titled Letsholathebe Vs the State: Towards the abolition of spousal exemption in Botswana, Jonas quotes a remark made by Justice Ian Kirby in which he stated, “Rape is a most serious, humiliating and invasive assault against a person and to suggest that it should be permitted if the perpetrator is a spouse is totally unacceptable and a historic aberration.”┬á┬á┬á┬á
The central aim of Jonas’s argument is that the marital dogma is “an antiquated legal doctrine that sits ill with all notions of human dignity and liberties of women.” ┬á┬á┬á
Jonas gives the example of one of the “antiquated” common law theories that he says objectifies the woman in a marriage, the unities of persons theory which┬á indicates that “it postulates that when two people marry, they become one ÔÇô the husband, thus making it impossible, both linguistically and practically, for the husband to rape himself. It creates a legal fiction that a man cannot rape his wife, as in so doing he will be raping himself,” wrote Jonas.┬á
The UB lecturer makes comparisons to how the United Kingdom, where Botswana derives its criminal law from, has, over the years managed to rid its society of the marital immunity doctrine.
Obonye also questions whether the court’s views on marital rape are in line with Botswana’s laws governing rape. He pointed out Section 141 of the Penal code which states that: “Any person who has unlawful carnal knowledge of another person, or who causes the penetration of a sexual organ or instrument, of whatever nature, into the person of another for the purposes of sexual gratification, or who causes the penetration of another person’s sexual organ into his or her person, without the consent of such other person, or with such person’s consent if the consent is obtained by force or means of threats or intimidation of any kind, by fear of bodily harm, or by means of false pretences as to the nature of the act, or, in the case of a married person, by personating that person’s spouse, is guilty of the offence termed rape.”
Jonas concluded that the common law rule of spousal exempt is no longer relevant and is no longer defensible purely on grounds of principle.
“What is more desirable is for the legislature to step to the plate and pass a law that clearly outlaws marital exemption. This law will teach Botswana society that marital rape is not a husband’s sexual privilege but a dehumanizing, unjust and criminal act,” said Jonas.