South Africa currently holds the title of rape capital of the world with headlines stating that “a woman is raped every 17 seconds,” (Solidarity Helping Hand Women in Action, 2010). Such statistics are shocking and are hard for many to comprehend. This is in spite of the fact that the country has laws that clearly make rape an offence. The situation is even more dire regarding marital rape – a form of rape that is arguably the least recognised of all forms of rape. One wonders whether the law is enough to deal with what appears to be an attitudinal problem more than anything.
This paper discusses and evaluates the law surrounding marital rape in South Africa and explores evidence that suggests that the law alone is not enough to shift a country away from discriminatory practices, and concludes that more needs to be done within society before positive change on the ground is realised. The article also argues that marital rape will continue to exist until gender inequality and the patriarchal systems that disempower women are eliminated.
So what…he is the husband!
Marital Rape has been described as ‘one of the most serious violations of a women’s bodily integrity’ and yet it is a term that many people still have a problem comprehending, with some still describing it as a ‘contradiction in terms’ (South African Law Commission, 1997; Ali, 2008). The attitude of many – not just in South Africa, but also in southern Africa, and perhaps the whole continent – is that it is not rape as long as the perpetrator is one’s husband, or known partner.
This attitude mainly survives because of the widely held myth that rape is only executed by strangers. Yet, marital rape is included in the definition of gender-based violence given by the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which states that ‘violence against women shall be understood to encompass…marital rape’. ‘Marital rape is any unwanted sexual acts by a spouse or ex-spouse, committed without consent and/or against a person's will, obtained by force, or threat of force, intimidation, or when a person is unable to consent’. (Stritof S. & B.)
With 18.8 percent of South African women admitting to being subjected to marital or partner rape on one or more occasions, marital rape is clearly not a myth (Lucas, 2010: 3). The World Health Organisation’s 2006 study on domestic violence, which encompasses marital rape, found that intimate partner violence is the most common form of violence in a woman’s life – much more common than assault or rape by strangers or acquaintances (World Bank in Soul City 1999: 9). Some have even argued that marital rape causes more lasting effects than rape perpetrated by a stranger as it not only includes the physical violation but also the additional violation of trust between a husband/partner and wife. In addition, given that the nature of the marital relationship, the rapists often repeat the offence many times over (Mhlanga, 2007). Research has shown that marital rape survivors are twice as likely to suffer physical injury compared to rape by strangers. (Myhill & Allen, 2002, 33)
The high incidence of rape in South Africa owes much to the violent apartheid system that was in place from 1948-1994 (CEDAW, 1998: 6). Women were the hardest hit by the impacts of apartheid, suffering both racial and gender discrimination. There were few if any legal rights for women, who were seen as the property of their husbands; and to this day, such beliefs are still common in across the country. For instance, a report by the UN Population Fund showed that ‘the right of a husband to beat or physically intimidate his wife’ was a ‘deeply held conviction’ rooted within tradition and that even within societies where women retain a higher status they would ‘condone or at least tolerate a certain amount of violence against women’ (UNFPA, 2000, Chapter 3). Marital rape thus seems to be a way of life within South Africa, and seldom stimulates the public outrage that it ought to (Reganass in Armstrong, 1994, 1).
In addition, many myths and stereotypes have surrounded marital rape and arguably still do. Two significant cases highlight these and it is clear from the judges’ opinions and decisions that simply criminalising marital rape is not enough to combat the problem and that further protection for marital rape survivors is needed. In S v. Moipolai , Judge Mogoeng, when discussing the complainant’s visit to the home of the appellant’s parents, stated that she “must have come knowing that this [sexual intercourse] was either likely to happen or was going to happen for sure and she was, given the nature of their relationship, willing to take part in the intercourse.” For a judge to make such an assumption sends the message that he does not believe marital rape can occur due to the ‘nature of their relationship’. This only reinforces the myth that because a woman has previously consented, she is likely to do so on future occasions, and so further forced intercourse is not seen to be rape. The judge went on to state that “this rape should therefore be treated differently from the rape of one stranger by another between whom consensual intercourse was almost unthinkable.” (Mogoeng JP, 2007: 24)
Similarly, in S v Modise , Judge Gura stated that “The desire to make love to his wife must have overwhelmed him, hence his somewhat violent behaviour…however…minimum force, so to speak, was resorted to in order to subdue the complainant’s resistance.” He then went on to conclude that, “This relationship, of husband and wife, should never be overlooked by any judicial officer.” However, the law now states that a relationship of husband and wife can no longer be a mitigating factor and so marital rape must be treated like any other rape (Criminal Law (Sentencing) Amendment Act, 2007: S.3(aA)).
Reporting rape, particularly marital rape, is not easy for survivors, and a 2010 Medical Research Council study showed that sexual violence by an intimate partner was the least often reported – with only 2.1 percent of women experiencing this form of attack saying that they had reported it. Finkelhor and Yllo (1985) found that marital rape survivors suffered a number of affects after the incident, including ‘betrayal and shock that someone who loved them would hurt them in that way, and feeling that they were to blame’. Several factors, such as a fear of police, lengthy court cases and many women being unaware that the forced sex her husband is subjecting her to is a criminal offence, all contribute to this lack of reporting. Women also fail to report rape because of their financial dependence on their husbands. One study of 20 wives’ experience of sexual violence by their husbands found that, within unequal relationships, women sometimes feel obliged to suffer acts of non-consensual sex with their husbands in return for the food and shelter that they are provide (Kottler in Mhlanga, 2007). Such evidence supports the theory that women living in poverty are more at risk and more vulnerable to such non-consensual sexual acts as they are generally uneducated and lack financial independence (WHO, 2006).
The introduction of rules within the Criminal Law (Sentencing) Act 2007, which prohibit lesser sentences based on any of the reasons listed in S.3(aA), also address the myths that surround rape. ‘Violence Against Women in South Africa, A Resource for Journalists’ discusses many of these myths with one of the most damaging being that rape can only be committed by a stranger and a husband cannot rape his wife (Soul City, 1999). Another myth and one also tackled by the implementation of these rules is that a woman was not really raped if she did not fight back and has not suffered any physical injuries.
In addition, in many of the rural villages within South Africa, customary laws take precedence over national law, resulting in discriminatory behaviour. One of the prime examples and linked to marital rape is the customary practice of lobolo. This is paid by the husband or his family to his new wife’s family, and a husband then believes his wife becomes his property. Such a practice can make a woman vulnerable to domestic violence, decreasing her ability to resist or flee abusive situations, while her husband may use it as justification for this abuse (Curran & Bonthuys, 2004; S.2.3).
One case that highlighted the problem with lobolo was the case of S. v. Mvamvu (2004), in which the complainant did not reimburse her husband for the lobolo he had paid when she decided to leave him. As such, the husband believed that they were still married when he kidnapped and raped her. The judge recognised that “his actions, though totally unacceptable in law...were shaped and moulded by the norms, beliefs and customary practices by which he lived his life” and that “the complainant’s rights to bodily integrity and dignity and her entitlement to have these rights respected and protected were not foremost amongst his concerns” (Mthiyane JA, 2004; ).
This case was heard in 2007, and Judge Mthiyane held that the court was entitled to depart from the mandatory minimum life sentence because there was the probability that they were still married under customary law and that he believed he had some right to ‘conjugal’ benefits. The judge gave a lot of weight to customary traditions, even though they were discriminatory and the complainant’s basic human rights had been violated. The judge offered no comfort but only lessened the appellant’s sentence, sending a negative message to other men that they could get away with abusing their wives on account of lobolo.
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Hope is born as laws are enacted, reformed and amended
For a long time, there was no hope for married women regarding rape, as it was sanctioned by law, and condoned by culture and social norms. The law then recognised other forms of rape, except for marital rape. This meant that consent was an irrevocable part of a marriage contract as illustrated in this statement – “A husband cannot be found guilty of raping his wife, by reason of her consent in marriage” (R v Gumede, 1946). This gave men power to legally force their wives to have sex with them, whenever they wished, with impunity. This legal status bred the attitude that marital relations are a private matter and should be dealt with at home; family and friends rarely got involved either (Wandia in Kimani, 2007: 4). Culture and social norms sealed the fate of women in that, once married, women were offered very little protection, legal or otherwise, from their sexually abusive husbands. It was not until 1993 that South Africa passed the Prevention of Family Violence Act, which, among other things, criminalised marital rape. The law stated that “Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted of the rape of his wife.” South Africa became one of the first countries within Africa – and one of the few members of the 15-member Southern African Development Community (SADC) – to criminalise marital rape. The question is, whether this has changed the situation of married women significantly?
One would expect that with such a law – along with a world class Constitution that was enacted a few years later in 1996 to ‘heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’ (Preamble of the Constitution of the Republic of South Africa, 1996 Act 108 1996) – marital rape would be a thing of the past. Indeed, since the introduction of the Constitution, the law regarding marital rape has continued to be amended and improved with the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of 2007. The criminalisation of marital rape – and the elimination of a defence to such action – means that marital rape is now incorporated into the offence of rape, which is governed by this Act. The Act confirms the country’s legal status on marital rape stating that “it is not a valid defence for an accused person to contend that a marital or other relationship exists or existed between him or her and the complainant.” The Act also improved the definition of rape so that ‘penetration’ now includes ‘into or beyond the genital organs, anus, or mouth of another person’ using the ‘genital organs [or] any other part of the body of one person or, any object, including any part of the body of an animal’.
It was through this same Act that the controversial ‘cautionary rule’ was abolished. For a long time, the cautionary rule allowed a judge the freedom to apply caution to the credibility of a rape survivor, particularly when her testimony was not corroborated, which rarely happens in rape cases. However, S.60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act now states that “Notwithstanding any other law, a court may not treat the evidence of a complainant in criminal proceedings involving the alleged commission of a sexual offence pending before the court, with caution, on account of the nature of the offence.” S.59 of the same Act also attempts to protect survivors stating that “In criminal proceedings involving the alleged commission of a sexual offence, the court may not draw an inference only from the length of any delay between the alleged commission of such offence and the reporting thereof.” This means that victims cannot be treated differently for not reporting an incident immediately.
With marital rape having been criminalised for over 14 years, South Africa introduced the Criminal Law (Sentencing) Amendment Act 2007, which offered minimum sentencing guidelines for rape, along with unsatisfactory and prohibited reasons for justifying a lesser sentence. S.3(aA) states that “When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence: (i) The complainants previous sexual history: (ii) an apparent lack of physical injury to the complainant (iii) an accused person’s cultural or religious beliefs about rape or (iv) any relationship between the accused person and the complainant prior to the offence being committed.”
It is worth noting that in comparison to some of its neighbouring countries, South Africa is setting a good example in eliminating discriminatory laws and promoting equality for women throughout its legal framework. In terms of marital rape, South Africa is one of the few SADC countries to have criminalised it – others include Zimbabwe, Lesotho, Namibia, Seychelles and Tanzania. Malawi, for instance, only defines rape outside of the marriage context despite the fact that 75 percent of married women in the country have admitted to being raped by their husbands (White, in BBC News, 2001). In a number of other southern African countries, women’s groups advocating for the criminalisation of marital rape are have been told by policy makers and traditional leaders that it would be difficult to convince the ‘ordinary man on the street’ that having sex with his ‘lawfully wedded’ wife can ever be rape (Ali N, 2008). Mozambique has adopted several laws to eliminate gender discrimination and violence but they have failed to include marital rape within their law on domestic violence.
What still needs to be done in South Africa?
Despite South Africa’s progressive laws, the country still has a huge problem regarding marital rape. In June 2009, figures released by the Medical Research Council showed that 14.3 percent of men had disclosed the rape of a current or ex-girlfriend. As recently as 2010, the Medical Research Council reported that 18.8 percent of women admitted to being subjected to marital/partner rape on one or more occasion, with a similar figure of 18.2 percent of men admitting to forcing their current or ex partners or wives to have sex when they did not want to (Lucas, 2010, 4). The rise in these figures over time is significant and could be because more women are able to admit when they have been subjected to marital rape and/or because of a rise in the prevalence of the offence. Either way, these statistics show that despite the introduction of laws criminalising marital rape, there is still a lot of work that needs to be done beyond the legal sphere to tackle South Africa’ shockingly high rates of marital rate.
There is a need to focus on society and shift peoples’ perspectives and attitudes. Sex stereotypes must be eliminated as these are part of the reason behind marital rape and discrimination against women (Gonzalez in CEDAW, 2002:9). Education and awareness for men and women are key to combating marital rape. The media are invaluable for such a purpose – with journalists having ‘the power to dramatically impact the perceptions and worldviews of their target audiences’ since their reports can ‘shape understandings of particular crimes and also affect attitudes towards both the survivors and perpetrators of violence’ (Boswell, 2003: 2; Soul City, 1999:4). The study found that media articles largely reinforced myths about rape and that survivors were given little empathy. Indeed, they were often blamed for the rape. Therefore, there is an urgent need for media to be more sensitive.
More work also needs to be done in rural areas, where many people’s lives are still guided by culture and tradition. There is need for comprehensive research to inform how South Africa can change attitudes and behaviours, which are shaped by discriminatory traditional and customary practices. More support groups and organisations are needed to raise awareness on women’s rights within these rural areas, as well as offer support to women who need it. Additional training is also required for police officers since there have been countless reports from survivors of police insensitivity when they report that they have been raped – a fact that discourages other survivors from coming forward (Human Rights Watch, 1995:7).
Eliminating marital rape begins with a country recognising the need for general equality and the rights of women. South Africa is one of the leading democratic states in Africa and has managed to enact progressive laws in relation to violence against women (Chamuka, 2011). This is a historical step in eliminating violence against women. However, the question still remains whether laws alone are enough, as incidents of marital rape seem to be on the increase.
In practice, ‘law can reflect social change, even facilitate it, but can seldom if ever initiate it’ and amending or creating a law is only a small positive step on the path towards eliminating individual problems (Fineman, 1991). It has been suggested that ‘criminal justice systems are probably the least effective institutions to look to for transformative change’ and this has arguably been proved within South Africa as the statistics show a very different picture to the progress made in terms of enacting equality laws and policies (Snider, 1998: 11). Indeed, since ‘violence against women…is deeply embedded in cultures around the world – so much so that millions of women consider it a way of life’ (Hopkins in Kimani, 2007: 4), it is crucial to focus on education and awareness-raising among the next generation in order to really turn the tide and end the plight of women who are raped in the context of marriage.
The original printed version of this article with full footnotes can be downloaded below.