“Oh darling, let’s get it on tonight.” That is a clear message. “Oh no, not tonight, I am tired and have to be at a meeting by 7AM.” That is a clear message. “You must be joking, I want you tonight, unless you are saying it is okay for me to hit the streets. You shouldn’t be denying me sex! You owe it to me!”
If the wife yields due to that coercion would that be rape?
In many cultures across the world including USA and Nigeria, spousal rape is a contradiction in terms. Laws across cultures make reference to rape only in context of women being victims but this often excludes those who have intimate relationship like domestic partners, lovers or couples.
Non-consensual sexual intercourse in which the perpetrator is the victim’s spouse is known as spousal or marital rape. Absence of consent is the essential element that creates the dilemma of rape within the legal framework of marriage. It is a form of partner rape, domestic abuse and sexual assault. It is illegal in the USA though details vary from state to state.
Traditionally the definition of rape is forced sexual intercourse by a man with a woman who is not his wife. Until 1975 many states had marital exemption that allowed a man to rape his wife without fear of legal retribution. This was so because wives were seen as properties owned exclusively by their husbands, with the first right of ownership by their masters, IF they are slaves. This changed in 1993 when women rights movements pushed for the passing of laws but it is still a challenge to prove no consent and some states still have exemptions for statutory rape of minors. In South Carolina report must be made within 30 days and in Virginia marital counselling is favoured in lieu of court proceedings and fines.
The idea that rape in marriage cannot be considered as rape dates back to the writings of Sir Matthew Hale (1609-1676), a 17th century English jurist who stated the position of the Common Law that wives give “irrevocable consent” to husbands through mutual matrimonial consent in contract that cannot be retracted. It is generally the assumption that husband cannot rape his wife because of ‘volenti non fit injuria’ meaning, “to a willing person, no injury is done” occasioned by “for better, for worse, for richer, for poorer, in sickness and in prosperity till death do us part”.
However, when we consider that the psychological trauma of rape is present in spousal rape, one sees reason laws must protect spouses. This includes depression, fear, anxiety, shock, suicide, disordered sleeping, post-traumatic stress disorder, substance abuse, psychosis etc.
A commendable progress has been made with the introduction of the Violence Against Persons Prohibition Act 2015. VAPP, which is in effect in the Federal Capital Territory Abuja, Nigeria, extends the meaning of rape. According to the Act, a person commits the offence of rape if:
• He or she intentionally penetrates the vagina, anus, or mouth of another person with any other body part or thing;
• the other person does not consent to the penetration; or
• the consent is obtained by force, threat or intimidation of any kind or by fear of harm or false and fraudulent representation as to the nature of the act or the use of any substance capable of taking away the will of such person or by impersonating spouse.
The provision of VAPPA is broad and fills lacuna in Criminal and Penal Code. VAPPA provides for compensation and therapeutic care for victims. It states imprisonment for offenders. Unfortunately only few states have domesticated the Act.
The issue of rape has been a legal quagmire in Nigeria, as the law previously did not recognise that a man can be raped. A senator recently made a joke of the absurdity of a man being raped. Traditionally it is generally believed that a woman consented to all future sexual activity with her husband through the contract of marriage.
In Lagos Nigeria there is the 2007 Protection Against Domestic Violence Law No. 15, which protects against spousal rape. In many cultures, the idea of marital rape is foreign, and contradicts beliefs – religious, social and cultural. The mantra has become “submit to your husband” hence women are expected to readily consent to sexual demands. Hence the society stigmatise women who raise alarm of matrimonial rape and assault, with clerics asking them to “prayerfully” sort out issues while the Police, tell them to “privately” solve issues rather than lose their homes to another woman. This error is why issues like abuse, forced marriage and serial rape of widows is handled as non-criminal when it is clearly criminal.
Some argue that in “Family Law in Nigeria”, “The parties to a marriage owe each other a duty to consummate it”. One of the grounds for dissolution of marriage under Section 15(2)(a) of the Matrimonial Causes Act states: “that the respondent has wilfully and persistently refused to consummate the marriage”.
This I daresay is understandable in cases where either party never consent to sex or says no needlessly over a period of time. In 2015 a wife who serially declined sex approached an Islamic Court to complain that the size of her husband’s penis was causing her pain and trauma. The marriage was dissolved. No woman should be compelled to endure pain to satisfy a man. If they had received counsel, the man might have learned ways to penetrate without causing harm. Sadly many men see sex not as a play of passion but as enter and exit.
Since intercourse includes intimacy, it is proper for either party to obtain consent but some are of the opinion that there is a standing implied consent as part of marital vows. While there may be standing consensual right, it must be reasonably exercised; coming in drunk to shove a woman against a wall with no regard to her health or emotion can never be right. This confusion stems from sexist malady. It is hoped that legislators will take a firm decision for the protection of spouses.
Nigeria’s legal system, section defines rape to the exclusion of married couple.
The Nigerian Criminal Code in Section 357 states that, “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 harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by impersonating her husband, is guilty of an offence which is called rape.” Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration.
Under the Penal Code, Section 281(1), there is no offence of marital rape, provided the wife has attained the age of puberty, which is 14 years.
Sexual intercourse without voluntary consent, in or out of marriage, is worthy to be called RAPE; that a man fulfilled all the obligations of customary or legal marriage is not sufficient for a wife’s emotion, will or state of health to be abused. Rape is a criminal offence under the Nigerian Law.
Unfortunately, dominance of Christianity, Islam and Traditional religions in Nigeria has made legal reforms on marital rape challenging.
1 Corinthians 7:3 says, a woman must not deprive her husband of sex and the husband must not do likewise, except both of them consent to abstain for a period. One can assume that the rights to the body of a wife belong to her husband and vice versa. Muslims argue that spousal abuse is forbidden in Islam as Allah commands that men live with or leave divorced wives with “acceptable terms” (Surah Al-Baqarah 2:231). But polygamy raise a legal question.
A man narrated how himself and his girlfriend had sex for up to 7 times a day before marriage. This continued for many years before the woman began to say NO! 7 times a day, 5-7 days a week! Even a paid-for gym service shouldn’t be that obsessive. The woman complained about lack of romance but he felt it was absurd. It takes more that deposit and withdrawal to run a sex account!
There may be acceptable reasons why a spouse may decline sex. Such reasons, whether stated or acted, should be respected. Any form of molestation, assault, harassment or battery in a bid to force a spouse to consent to sex should be a criminal offence. Sex should come from the point of human and humane intimacy not bestiality.
Since many laws still do not recognise marital rape, my suggestion to aggrieved parties would be that they file a case of sexual abuse, assault or battery. Doing this earlier may save the marriage rather than be forced to settle for divorce as a result of irreconcilable difference.
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