Quarterly Bulletin

 

Precisely how can one rape his lawfully wedded wife? This becomes a very difficult question in Zambia especially with traditions that affirm that “it is a man’s right to have sex with his wife whenever he wants.” Refusal can only be justified on very limited occasions like when one is menstruating, when one is near giving birth, and some months after giving birth. Even with such provisions, it was recommended that the man takes on a second wife to help in the man’s conjugal right. Going out of the box of traditional beliefs and attitudes, O’Brien Kaaba, a gender specialist, explores the whole question marital rape using ideas from scripture.

Being a female human being is a risk factor. Women and girls are often targeted for sexual abuse on the basis of their gender, irrespective of their age, ethnicity or political affiliation. In many jurisdictions, marriage obtains for men the right to lawfully, freely and with impunity rape their wives. This article considers the matter of marital rape, taking the view that providing immunity for husbands to freely rape their wives is both bad theology and bad law.

WHAT IS RAPE?

Different jurisdictions have varying definitions of what would be considered rape. But generally rape is considered as sexual intercourse not assented to by the victim of the sexual act. In Zambia, rape is defined under section 132 of the Penal Code, Chapter 87 of the Laws of Zambia as: “Any person who has unlawful carnal  knowledge  of  a  woman  or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of the felony termed rape.”

This definition of rape does not expressly state that rape within marriage is not allowable, nor does it expressly indicate that the husband would incur any criminal liability if he were to rape his wife. However, the use of the words “unlawful” in the definition would logically mean that, under certain circumstances, rape could be committed lawfully. In relation to this, there has been, for many countries that inherited the British (common law) legal system, a presumption, stemming back to an ancient common law Jurist, Sir Mathew Hale. He wrote in his History of the Pleas of the Crown (1736) that: “But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up this kind unto her husband which she cannot retract.”

THEOLOGICAL VIEWS

A few months ago I attended a conference which, inter alia, was discussing the vulnerability of women to HIV and AIDS. One person who had been working in the HIV and AIDS area for many years had a puzzling encounter and put it before others to garner their counsel. A husband and wife had been married for several years. The husband tests positive to HIV while the wife tests negative. In order to protect the wife, the couple are advised to use a condom every time they had sexual intercourse. When they returned home the husband refused to be using a condom, but the wife would not let him have sexual intercourse with her without him wearing a condom. The husband forced himself on the wife and had sexual intercourse.

In the group was a middle aged man who without hesitating rendered his advice. According to him marriage is “for better for worse” and therefore the wife had no right to deny the husband sex just because the husband was now “sick.” He promptly cited 1 Corinthians 7:5 which states: “Do not deny yourselves to each other, unless you agree to do so for a while in order to spend your time in prayer; but then resume normal marital relations. In this way you will be kept from giving in to Satan’s temptation because of your lack of self-control.”

Such views are not isolated but are widely shared by many people in Zambia, arguing generally that the reason for which matrimony was ordained was that it was better that those incapable of continence to marry than burn with passion. So if one spouse refuses the other, this goal of matrimony would be defeated. Others add further that if the wife refuses to have sexual intercourse with the husband, he is being forced to fall into sin by going outside the bond of marriage to satisfy his sexual desires. Therefore, a husband forcing sex on his wife would be better than the one who goes out to commit adultery.  The argument is somehow reduced to either the husband has sex “now now” or he hurries out to gratify himself outside the marriage bond.

In relation to the foregoing, I have the following observations:

First, limiting the choice of the husband to either raping his wife or committing adultery is debasing to the dignity of both men and women. In the book of Genesis, we are taught that God created human beings in God’s own image. Human beings are thus called to mirror God’s dignity and integrity in their daily lives. The view that a husband should either rape or commit adultery is basically affirming the myth that men are incapable of sexual continence or self control and implicitly saying that all women should rightly assume that all men are sexually insatiable marauding beasts looking for women to devour. Women are then turned into sexual objects existing solely for the sexual gratification of men.  That would not be the image of God human beings are called to mirror.

Second, in Paul’s letter cited above, Paul encourages couples to share their whole selves freely. It does not say expressly or implicitly  that  if  a wife refuses sexual intercourse then the husband has the right to extract it by all means possible including use of force or violence.

Third, sexual violence is a phenomenon rooted in gender inequality, discrimination, male domination, poverty, misogyny and the entrenched socialisation of sexual myths. Contrary to several myths surrounding sexual violence, rape (and other forms of sexual violence) is not primarily about sexual passion but is an issue of power and control. A husband is not expressing his love nor Christian values of marriage by raping his wife, but is actually debasing the wife in the marriage.

Fourth, the view that the husband could rape his wife seems at variance with the Catholic Church’s teaching. The Church teaches that sexuality is ordered to the conjugal love of man and woman; that in marriage the physical intimacy of spouses becomes a sign and pledge of spiritual communion  (Catechism of the Catholic Church # 2360); that the spouses’ union achieves the twofold end of marriage: the good of the spouses and the transmission of life, and that these two meanings or values of marriage cannot be separated without altering the couple’s spiritual life and compromising the goods of marriage and the future of the family (Catechism of the Catholic Church #2363). It hardly needs to be mentioned that sexual intercourse extracted by means of violence is not premised on furthering any of the sacred goals of marriage as the Church teaches.

THE LAW

The position of Sir Mathew Hale, cited above, has been assumed and presumed as law for many years in countries that inherited or were influenced by the English legal system. However, contemporary research indicates that Hale mis-stated the law even as it existed at that time for English Law had no such provision for a husband to rape his wife. This was exemplified by the case of the Earl of Castleham who was convicted in 1631 of rape upon his wife when he held her down in order that a servant has sexual intercourse with her. Hale’s position should therefore be seen as unfounded and fallacious.

The presumption that a husband had immunity for raping his wife several times led to absurd anomalies (owing to the fact that the husband had no immunity against assaults or other offences against the person). For example, in R v Miller [1954] 2 All ER 529, the husband was charged with rape of his wife after she had left him and filed a petition for divorce. He was also charged with an assault upon her occasioning actual bodily harm. The Judge, Lynsky J, quashed the charge of rape but refused to quash that of assault, stating: “it seems to me, on the reasoning of that case, that, although the husband has a right to marital intercourse, and the wife cannot refuse her consent, and although if he does have intercourse against her actual will, it is not rape, nevertheless he is not entitled to use force or violence for the purpose of exercising that right. If he does, he may make himself liable to the criminal law, not for the offence of rape but for whatever other offences the facts of the particular case warrant. If he should wound her, he might be charged with wounding or causing actual bodily harm, or he may be liable to be convicted of a common assault.” So the presumption that a man could not at all rape his wife leads to the absurd and strange result that although use of force to achieve sexual intercourse was criminal the actual achievement of sexual intercourse was not!

The position that a husband obtains by marriage the right to rape his wife is not only discriminatory but undermines, impairs, nullifies and deprives women of the exercise of their fundamental human rights. Many jurisdictions have already taken measures to cure this unfair anomaly against women. The British, from whom we inherited that presumption, for example, in the case of R v R (Rape: Marital Exemption) [1991] 4 All ER 481, took the view that in modern times marriage is “regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.” It was further noted that the words “unlawful” in the definition of rape were to be treated as mere surplusage.

CONCLUSION

Traditionally in Africa and elsewhere words of wise persons and fallen heroes are treasured and every effort is taken to ensure that they are respected and realised. Our departed and beloved Pope John Paul II in 1995 (June 29) took the responsibility to write a personal letter to every woman. In that letter he bemoaned the fact that women’s dignity has often been an unacknowledged and their prerogatives misrepresented; that they have often been relegated to the margins of society or even reduced to servitude. I end this article by citing John Paul’s words in the same letter appealing for the recognition of the dignity of every woman. “Time has come to condemn vigorously the types of sexual violence which frequently have women for their object and to pass laws which effectively defend them from such violence.”

Kaaba O’Brien
Lusaka, Zambia