Southern Africa: Justice for survivors of marital rape, how far has SADC come ?

The question of whether marital rape is recognised or not by Southern African Development Community (SADC) governments, as a matter of policy, should be put to rest. International organisations and agreements recognise marital rape as a human rights violation and six SADC countries have domesticated this position in their criminal justice systems.

SADC is making progress, albeit fraught with uncertainties, towards a legally binding Gender and Development Protocol scheduled for adoption in 2008. Yet, it is surprising that the current draft of the Gender and Development Protocol excludes marital rape from the ambit of gender based violence, making it diametrically opposed to the 1998 commitment by SADC governments, and indeed, the progress already made in six countries in the region. Are we taking a step back or moving forward?

Nine years ago, SADC governments made a strong policy stance, through the 1998 Addendum to the SADC Gender and Development Declaration, to comprehensively prevent and eradicate violence against women and girls. Not only did they acknowledge the root causes of gender based violence as stemming from unequal gender relations, but also recognised that this was a “a serious violation of fundamental human rights.”

They understood that there is no distinction between the private and public spheres of women and children’s lives, and that violence within the family, including threats, intimidation, battery, sexual abuse of children, economic deprivation, marital rape, femicide, female genital mutilation, and traditional practices harmful to women must be punished. So in fact, marital rape is on the SADC agenda as a priority area for intervention.

So why, nine years on, and in spite of acceding to or ratifying international human rights instruments such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and the African Union Protocol on the Rights of Women in Africa, have only six of the 14 SADC countries seen it fit to provide justice to survivors of marital rape?

What is distinctive about Zimbabwe, Lesotho, Namibia, Seychelles, South Africa, and Tanzania, all of which now recognise marital rape? It may well be a question of political will, but equally the recognition that rape in all its forms can be a matter or life and death, causes untold trauma on survivors, and in some cases social ostracisation, including permanent scars, aside from destroying the essence of their lives.

The message from these six countries is that a marriage contract does not include an agreement for rape to happen. The so-called conjugal rights do not include the right to violate the individual rights of the other in any form whatsoever.

If the proposed Gender and Development Protocol is a forward looking document, affirming SADC women’s rights and grounded in their experiences, then there is also a need to set targets, including benchmarks to reduce and eventually eradicate gender based violence. This includes the target to reduce gender violence by 50% by 2015, and 70% by 2020, all of which are still subject to negotiation.

The spotlight is increasingly on marital rape due to evidence of the high rate of HIV infections amongst married women, rooted in unequal power relations, including their inability to negotiate safe sex. Repeated marital rapes increase their risk of infections, as well as the possibility of disability arising from the violence.

What makes marital rape as opposed to stranger rape particularly devastating is the violation of the trust between two people bound in a marital union, and the impact this has on the violator’s role in relation to the violated spouse. The trust is irreparably broken, compromising other marital rights flowing from the union.

For example, how can the violator of such an intimate relationship be expected to play the role of protector of the rights of the children in the marriage? It has been noted that because of the nature of the marital relationship, the rapists often repeat the offence many times over, because of their perceived right to usurp and violate the rights of the survivor, such as her bodily integrity.

This is a key reason why state and other interventions to stop the criminal behaviour are critical. If women still find it difficult to report stranger rape, what where does this leave rape within marriage?

People Opposing Women Abuse (POWA), a south African based gender justice organisation, notes, citing a 1998 study (Kottler) of 20 wives’ experience of sexual violence from their spouse or partner, that much awareness raising is required. Women need to understand that acts of “forced,” “survival” or “pressurised” sex, are in fact non-consensual sexual acts, and fall within the ambit of marital rape.

There is a reluctance to name the act of non-consensual sex within marriage for what it is, often because of notions of what a “real rape” is; understood as rape by a stranger outside the home.

Citing the same study, POWA also notes that unequal relations sometimes result in non-consensual sex, such as “obligatory” sex by wives, to pay back husbands for food and shelter. Gender activists in the region of raise the issue of the need to approach gender based violence in a multi-sectoral and integrated way. Poverty and lack of power to control one’s sexuality, for example, puts women in marital and other unions in vulnerable positions which compromise their rights.

Preventing and eradicating marital rape is thus an important factor in addressing gender inequality, and, by extension, any strategy to respond to a whole range of challenges that are limiting the region’s development and democratisation process.

A violence free society is certainly a good benchmark for deepening regional integration in SADC, and an important goal for the region. Recognising all forms of rape, including marital rape, and committing to be legally bound to ensure that the criminal justice system addresses this crime effectively, will send signals to rapists within marriages that this will attract punishment and stiff penalties.

For women of SADC, knowing that they have a legal right to seek redress in the tragic event of being raped by their spouses, is another milestone in the long road towards the enjoyment of their full rights as citizens. Freedom from violence widens opportunities for women to participate in, and benefit from, the development and democratic processes of the region; that is the ultimate goal for all citizens, without distinction.

* Pamela Mhlanga is the Deputy Director of Gender Links.

* This article is part of a series produced by the Gender Links Opinion and Commentary Service for the Sixteen Days of Activism on Gender Violence.

* Please send comments to [email protected] or comment online at http://www.pambazuka.org/