Sexual violence in marriages is a very real issue in South Africa, but remains shrouded in silence and denial. It’s a subject that Nyasha Karimakwenda has researched for many years in various forms, from traditional practices to court judgments. We asked her to outline the issues.
What is marital rape and why should we pay more attention to it?
Though marriage rates in southern Africa have decreased over the past decades, marriage is still considered to be an ideal social tool for formalising relationships and building families.
But it’s also an environment where spouses can be exposed to different kinds of abuse. This includes sexual abuse by their partners.
Marital rape is the term commonly used to refer to sexual violence by a partner in a marriage or former marriage. It’s a significant problem globally and is mostly committed by husbands against wives.
It’s critical that we learn more about marital rape because it’s a feature of many women’s lives. And it’s not uncommon for it to happen alongside other kinds of violence in marriages. These can include emotional, verbal, economic and physical harms.
Why is there so much silence around marital rape?
Many cultures and legal systems around the world have supported the position that sexual violence committed by husbands against wives is not morally wrong. Or that it’s an issue that should remain within the family.
Historically, for example, Commonwealth countries inherited the marital rape exemption from England. This established that husbands could not be held criminally liable for raping their wives. Some African countries – such as Kenya, Uganda and Nigeria – still retain versions of this exemption and marital rape is not a criminal offence there.
Added to this are existing patriarchal cultural norms across the continent that reinforce the idea that husbands are entitled to sex with their wives, whether the wife says no or not.
Read more: It's still legal to rape your wife in India. That could be about to change
It’s only in recent decades that countries around the world started to change their criminal laws to allow for rape in marriage to be prosecuted. But there is still a lot of progress needed to make sure that both laws and cultures fully recognise the existence and harm of marital rape.
In South Africa marital rape was made a crime in 1993. Even so, as my doctoral research shows, marital rape continues to be silenced because of social and cultural perspectives.
Read more: Rape is still rape even if you're married – report finds some South African men don't believe it is
I learned that among some communities the belief that marriage gives husbands unlimited sexual access to their wives remains strong. Under this thinking, husbands cannot rape their wives, because they have ownership of their wives’ bodies.
My research, along with the work of other scholars, also captures how women are socialised to accept that their bodies are no longer their own once they marry. So they suffer the sexual abuse in silence.
What is ukuthwala and what’s its connection to marital rape?
The term ukuthwala has various meanings in South Africa’s dominant Nguni languages. In the context of marriage, it describes particular customary practices used to make a marriage happen quickly, and often with less expense in poorer communities.
These practices exist across South Africa, but are mostly documented among the Xhosa and Zulu people. Historically, ukuthwala has also been practised in different forms. Some forms of ukuthwala are more like elopement. Other forms are extremely violent, where a girl is abducted by a group of men, beaten, raped and forced to marry a man typically much older than her and a stranger.
Read more: Rethinking ukuthwala, the South African 'bride abduction' custom
Examining violent ukuthwala is another way to understand how marital rape is condoned. A growing body of ukuthwala research, including my own, shows how, for generations, some families and communities have used the custom and rape to control unwilling brides and transform their social status from girl to wife.
Gradually, more research is showing how certain communities don’t view the sexual force in ukuthwala as rape, but see it as an acceptable means for creating and maintaining a marriage – a part of custom.
What happens when women turn to South Africa’s courts?
Because of the cultural misunderstandings of marital rape, wives face significant hurdles in getting their case moved along from police to prosecutors to trial before a judge. Participants in my marital rape research expressed how police sometimes mock wives seeking help. They believe it’s not possible for a husband to rape a wife and maintain that criminal punishment is not appropriate.
Prosecutors also have problematic views about marital rape. A 2017 rape attrition study by the South African Medical Research Council found that prosecutors were reluctant to refer intimate partner rapes, including marital rapes, for trial.
Read more: Rape in South Africa: why the system is failing women
We need more research about how marital rape is treated by the courts. But there’s evidence of similar thinking held by judges. In a few appeals cases that I analysed, judges affirmed husbands’ rape convictions but handed down lesser sentences because of the marital relationships. This minimises a wife’s pain and the seriousness of marital rape.
How does South Africa best address the problem?
My research emphasises that marital rape survivors need specialised, empathic and personalised assistance. Society can start by listening and being kind to women who divulge their pain.
I’ve found that women’s community-based organisations like Masimanyane and Mosaic are critical for providing non-judgmental and culturally-aware spaces for women seeking support when facing violence.
Awareness raising and education at national and local levels is vital to dismantle the longstanding idea that husbands are entitled to sex in marriage. This is also critical for wives to understand their rights to wellbeing and sexual autonomy.
Lastly, civil servants that survivors engage with – medical professionals, police, prosecutors, judges – must be properly sensitised to the unique circumstances of marital rape survivors. There should be greater oversight of their professional conduct.
Nyasha Karimakwenda does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
This article was originally published on The Conversation. Read the original article.
