COMMENT: Marital rape controversy

COMMENT:By Winnie Brenda Watera

Prejudices hinder progress on a law that could improve the lives of women

The Sexual Offences Bill, 2015 was finally presented to parliament for the first time on April 14, 2016 by Kumi District Woman MP, Monica Amoding, as a Private Member’s Bill. Before this, the Bill had languished for five years on the shelves of its movers as it awaited ‘collaboration’ with government. It is important to note that it was laid without a certificate of Financial Implication, which is now possible given section 76 (4) of the Public Finance Management Act 2015. In the past, the government has been accused of using the certificate as a tool to stifle attempts by MPs to advance their private Bills.

The Bill, whose objective is to consolidate existing laws on sexual offences, is the brainchild of the Uganda Women’s Parliamentary Association.

It stands as one of the few attempts by women to set the standard of what qualifies for sexual offences in recent times.

The Bill on one hand reiterates existing legislation on sexual crimes and, on the other, presents new provisions that are very controversial, especially in regards to marital rape.

What stands out in the Bill are the progressive provisions incorporated; the rape of men and marital rape that had previously been ignored despite being internationally acknowledged sexual crimes.

Despite the progress made, the pessimist in me fears the Sexual Offences Bill might suffer the same fate as the Marriage and Divorce Bill which also intended to criminalise marital rape but has never seen the light of day as law. Previous attempts to pass this Bill date as far back as 1970, then in 2003 and 2009.

High up the pyramid of reasons for failure to pass these Bills into law is the fact that people just do not understand the notion of marital rape.

The gravity of offenses also remains barely knowable because victims often do not report and research in this arena is limited. The little that exists is not tailored to an African or Ugandan setting, where norms and values are at different ends of the spectrum.

These factors have led to limited understanding of marital rape or even acknowledging its existence.

Consequentially, in many ways, the standard for what qualifies as rape has not been set by women but rather by men since they are the majority of those charged with passing legislation. The application of majority rule becomes tranny over the minority.

The men base on their perceptions of unacceptable behavior based on their own understanding of sexual offences.

Patriarchy, which many Ugandans are accustomed to, tends to play a vital role in how they perceive the world. The value systems within which they are raised take precedence in a number of things both consciously and unconsciously.

While attempting to criminalise marital rape where men everywhere are the main perpetuators, it should be recognised that they will instinctively want to insulate themselves from the repercussions in the event that they are the oppressors.

In no way do I mean that these legislators solely base their decisions on their masculinity, but in some ways their masculine identity prevents them from understanding the gravity of marital rape from the perspectives of female victim’s world over.

Humans are highly emotional beings, and their decisions are premised on how they perceive things and if attempts to make them understand prove to be futile, they tend see unfamiliar notions as a fallacy.

One is, therefore, more likely to believe a stranger raped an individual than a person with whom one is familiar, let alone one to whom they are married. Many conveniently assume that after nuptials, sex is always consensual.

Culture and religion have been detrimental to any concerted attempts towards recognising marital rape. In typical Ugandan society, seemingly, a man cannot rape his wife because sex is one of the benefits of marriage. Since abstinence till marriage is instilled in children from the get go, it creates an impression that chastity finally pays off at marriage and sex can happen as often as one party deems fit. It totally disregards the consent of the other party at that particular time.

Sex talk or bedroom matters, as it is often referred to, is culturally a taboo to talk about.

Religious texts, like Bible verses are many times used selectively to justify certain injustices against women. One such verse is said to emphasise the view that a woman must submit to her husband at all times. The husband, meanwhile, is only required to love his wife.

Given the acclaim that Uganda is a moral and God fearing country, culture and religion as sources of law in Uganda have somewhat cemented the pre-existing notions that non-consensual sex cannot occur in marriage.

Breaking these belief barriers will take longer than many might want to believe.

Even when the Bill is passed into law, it could be watered down by poor institutional capacity and lack of resources to implement investigate, prosecute and sentence perpetrators of sexual crimes.

Marital rape is also hard to prove since it is partly based on circumstantial evidence which makes it one person’s word against another’s.

The law could also suffer the same fate as existing laws that explicitly condemn and prescribe punishments for sexual offenders but have not deterred the crimes as fast as was contemplated. This is the spirit in which the Sexual Offences Bill, 2015 is laid.

While the fight against marital rape rages, it is important that its movers acknowledge the aforementioned barriers that will stand in their way. But they must not make them cower at the first hurdle. It should only make them fight even harder.

Parliament cannot continue operating in a vacuum, detached from the reality of issues that affect day to day lives of women and men. I urge the expeditious consideration of Sexual Offences Bill, by the Legal and Parliamentary Affairs Committee to which the Bill is committed, and eventually by the entire house.

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Winnie Brenda Watera is Programme Associate at the Centre for Policy Analysis in Kampala

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editor@independent.co.ug