A young married Motswana woman working her fingers to the bone to ensure a roof over her head, to feed, clothe and educate her children would seem to have enough on her plate.
However for some women here, things get worse. After eight weeks missing in action an estranged husband comes back out of the blue to demand ‘his conjugal rights’ by force. Many women suffer thus in silence. “The law is silent on marital rape in Botswana and marital rape is not recognised as a crime,” says Peggy Ramaphane of the Women Against Rape Trust in Maun.
However, rape is clearly defined in the Penal Code of Botswana as involving, “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.”
Despite this thorough and explicit definition of rape, many spouses in Botswana continue to live under the wrath of sexually abusive husbands because marital rape remains a “social crime”. Women are perceived as the perpetrators for denying men their conjugal rights.
Marital or spousal rape, according to Magdeline Madibela of the Gender of the Southern African Development Community (SADC), is “Non-consensual sex and where the perpetrator is the victim’s spouse. As such it is a form of domestic violence and or sexual abuse.”
According to Madibela, “It is difficult to criminalise spousal rape because the law in theory may hold no distinction between a spouses or any other person. In practice when the case comes to court there will be difficulties in proving that rape in fact took place. This is because in marriage, sexual relations are to be expected, and if the defence claims consent, then the evidential burden is a very difficult burden for the prosecution to discharge. Also, the definition of consent can also lead to problems and deadlock, since social and cultural norms assume that in marriage there is entitlement to sex regardless of abuse or misunderstanding.”
Marital rape in Botswana is rife and often goes unreported because it is not deemed as a criminal offence and therefore perpetrators will not be persecuted despite the fact that they had forced themselves on a woman regardless of the nature of their relationship. “Marital rape is often condoned or ignored by the laws, but has been recently recognised by international conventions and increasingly criminalised,” says Madibela.
Although in Botswana, the adoption of the Domestic Violence Act in 2008 criminalises many acts of gender based violence, the issue of marital rape is not adequately addressed and women continue to suffer in silence under this abuse. This problem will continue to prevail because according to Ramaphane, “Spousal rape is rare as the married people find sexual matters too private to talk about to a counsellor or even to admit that there was non consensual sex/rape in the marriage, most of the counsellors at Women Against Rape are relatively young and unmarried and this can be a barrier for women to report rape in the marriage.”
Women’s right activist, Ntombi Setshwaelo attributes ignorance to the continual prevalence of marital rape. She says people needed to be informed, educated and enlightened on the matter. According to Setshwaelo, when addressing the issue of conjugal rights, prevailing circumstances of the relationship are taken into consideration like, “the man being abusive, absent or unfaithful,” prior to him demanding sex from his spouse.
Any form of abuse renders the victim helpless. Therefore in the case of spousal rape the victim is unable to dictate whether or not protection is used. Botswana has declared war against the spread of HIV and AIDS. According to Madibela, “Research shows a direct link between gender-based violence and HIV infection, particularly in young women. Women and girls are physiologically two to four times more susceptible to HIV infection than men and boys.” Spousal rape is well within the parameters of gender based violence and goes as far as human rights violation.
With organisations like Women against Rape which has establishments in Maun and Gaborone women are able to find a safe haven when the law cannot explicitly protect them. These rape crisis centres are able to, “To support women and children who have suffered abuse through counselling, safe house, legal advice and address issues that contribute to the abuse.”
There are many underlying factors contributing to spousal rape. In Botswana it has been ‘trivialised’ and regarded as a Western phenomenon.