Posted: 7 April, 2025 Filed under: James Mulei | Tags: ‘unlawful’ penetration, biological abilities, bride price, cultural taboos, cultural traditions, gender-based violence, inancial security, intimate partner violence, justice to victims, Kenya, Kenya’s Sexual Offences Act (2006), lack of forensic medical experts, marital rape, non-consensual sex, physical disparity, physical effects, psychological effects, rape, rape within marriage, unconsented sex
Author: James Mulei
Kabarak University
“You are mad!” Resian screamed at him. “You are stark mad if you think I am your wife. He repeated quietly, smiling “Whether you scream your heart out, or jump into the deep sea, Resian, you are mine. You are my wife from now henceforth! Let us see how ‘educated’ your body is.” *
The juxtaposition of marital rape has been a subject of discussion, spanning several years if not centuries. Ideally, juxtaposition here refers to contrasting the concept of rape within marriage. Why would a man rape his wife if they are married? Isn’t rape characterised by unconsented sex, where ‘unlawful’ penetration must occur? The immunity of a husband had a long historical tradition, framed by British common law. The immunity of husbands was established by the eminent judge and jurist Sir Matthew Hale in 1736, where he pointed out that a husband cannot be guilty of rape upon his wife for a husband could not be guilty of raping his wife, as marriage implied consent. This theory treated marriage as a contractual agreement where sex was an obligation, making it impossible to prosecute marital rape.[1] This implied that a husband is incapable of raping his wife, meaning that any sexual acts perpetuated within the marriage could not be subject to judicial scrutiny.[2]
The jurisprudential nature of law is often characterised by determining ‘what is law’. However, positivists such as Lon Fuller argue using the King Rex analogy that laws should not merely reflect existing social norms but should be crafted to promote justice and societal progression.[3] In the analogy, Lon Fuller further illustrates the perils of an inadequate legal system of a ruler who fails to create clear, fair, and enforceable laws ultimately undermining justice.[4]
India is among the countries where marital rape is criminalised. For instance, in a judgment delivered on 8 December 2023 by a Gujarat High Court, the learned judge rejected bail for a man accused of raping his wife. In the words of the presiding judge, Justice Divyesh Joshi, “a man is a man; an act is an act; rape is rape, be it performed by a man, the ‘husband’ on the woman, a ‘wife’.[5] In this instance, the judge separated the couple from a single entity, recognising the individual positions they hold in society.
Despite such rulings, few countries have criminalised marital rape.[6] Western nations have led the way, but most African states, including Kenya, have yet to follow.[7] Shouldn’t Kenya undergo this jurisprudential transformation?
Chimamanda Adiche acknowledges that men and women are different, have different hormones, different sexual organs, and different biological abilities.[8] Men have testosterone and are in general physically stronger than women.[9] The physical disparity makes women more vulnerable to gender-based violence, including rape.[10] Kenyan society, largely patriarchal, often treats women as subordinate. Cultural traditions, including bride price, reinforce the misconception that a wife is her husband’s ‘property’.[11] This belief fuels the notion that a woman’s body is not entirely her own after marriage, leading to marital rape.
The idea that sex is a husband’s right can breed abuse. If a wife does not consent but is coerced into sex, marital rape has occurred. However, Kenya’s Sexual Offences Act (2006) does not recognise marital rape, even exempting it under Section 43(5) of the sexual Offences Act. This effectively denies justice to victims.
Marital rape has severe physical and psychological effects but is widely overlooked. A major issue is underreporting, as many victims depend on their spouses for financial security.[12] Fear of retaliation, stigma, and cultural taboos further silence survivors. A common misconception is that rape is committed only by strangers. This obscures the reality of non-consensual sex in marriage. Additionally, intimate partner violence is often chronic, making it difficult for victims to recall specific incidents, hampering legal proceedings.[13]
Even when reported, law enforcement dismisses marital rape as a private matter, as the belief that a husband need not seek his wife’s consent persists. The judicial system’s inefficiency and lack of forensic medical experts further hinder justice.[14] Yet, Section 42 of the Sexual Offences Act states that “a person consents if he or she agrees by choice and has the freedom and capacity to make that choice”. While the law does not explicitly define ‘choice’ or ‘freedom,’ it implies the importance of free will in sexual activity, free from coercion or deceit.[15] Nonetheless, section 43(5) of the Penal Code assumes that marriage itself implies consent. No legal challenge has overturned this presumption. Instead, assault charges, carrying lighter sentences, are more commonly used in marital rape cases.[16]
Notably, Article 27 of the Constitution obliges the State to uphold non-discrimination principles, with Article 27(5) extending this duty to individuals, prohibiting them from engaging in any form of discriminatory behaviour, whether overt or covert.[17] While the Constitution does not explicitly define ‘discrimination,’ it is interpreted within the confines of the ‘equal treatment’ principle. This principle broadly means that treating someone, such as a woman, less favourably than another person solely based on gender constitutes unlawful discrimination. Therefore, the notion of subjugation of women via marital rape ought to be done away with.
Kenyan courts have referenced the Indian case State of Kerala and Anor v N M Thomas and others as a guiding precedent for assessing equality.[18] In this case, Justice Khanna outlined the test for ‘equal treatment,’ emphasising that equality means parity of treatment under similar conditions. However, equality does not imply absolute uniformity; any classification must be based on substantive distinctions rather than arbitrary ones. The constitutionality of such differentiation depends on whether it has a reasonable basis, ensuring that all individuals naturally belonging to a category are included and none are unjustly excluded.
Applying the ‘equal treatment’ doctrine to the issue of marital rape showcases how its exclusion from legal recognition results in unequal treatment of married women. By treating non-consensual intercourse within marriage differently from other forms of sexual violence, the law subjects married women to a lower standard of protection. This omission is discriminatory, particularly as Article 27 of the Constitution explicitly prohibits discrimination based on ‘sex’ and ‘marital status.’ Consequently, exempting marital rape from sexual offenses unjustly disadvantages married women, denying them the same legal protections granted to other rape victims.[19]
This legal disparity echoes the struggles of Nora Helmer, a character in Henrik Ibsen’s A Doll’s House, who is treated as her husband Torvald’s possession rather than an autonomous individual. Torvald controls her under the guise of protection, mirroring how the exclusion of marital rape perpetuates patriarchal norms that view married women as subordinate to their husbands.[20] Just as Nora ultimately asserts her independence, recognising marital rape as a crime is essential to dismantling legal structures that reinforce gender-based inequality.
In conclusion, this article recommends that Kenya explicitly criminalise marital rape to uphold its human rights obligations towards women. A comprehensive response should include both legal and extra-legal reforms to effectively combat marital rape in the long term. These reforms entail the amendment of the Sexual Offences Act, 2006, to ensure that non-consensual intercourse within marriage is explicitly recognised as rape. Currently, Section 43(5) of the Act exempts spouses from the provisions that define sexual offences, thereby creating a legal loophole that shields husbands from prosecution, regardless of the coercion, force, or violence used against their wives. Repealing Section 43(5) would eliminate this outdated exception and affirm that marriage does not nullify a woman’s right to bodily autonomy. Furthermore, Section 3 of the Sexual Offences Act, which defines rape, must be amended to explicitly state that forced intercourse within marriage constitutes rape. Additionally, the legislation should be gender-inclusive, acknowledging that men can also be victims of marital rape.
* H R Olekulet, Blossoms of the Savannah (Longhorn Publishers Ltd 2017) 114.
[1] Lisa Featherstone, ‘Rape in Marriage: Why Was It So Hard to Criminalise Sexual Violence?’ (Australian Women’s History Network, 7 December 2016) https://www.auswhn.com.au/blog/marital-rape/ accessed 12 March 2025.
[2] Lisa Featherstone, ‘Rape in Marriage: Why Was It So Hard to Criminalise Sexual Violence?’ (Australian Women’s History Network, 7 December 2016) https://www.auswhn.com.au/blog/marital-rape/ accessed 12 March 2025.
[3] Lon L Fuller, The Morality of Law (Yale University Press 1963) 34.
[4]Lon L Fuller, The Morality of Law (n 4) 35.
[5] Anjanaben w/o Bhavinbhai Devshankarbhai Modha v State of Gujarat, Criminal Suit No 20522 of 2023, Ruling of the High Court of Gujarat at Ahmedabad, para 13.
[6] Anjanaben w/o Bhavinbhai Devshankarbhai Modha Versus State of Gujarat, Criminal suit No 20522 of 2023, Ruling of the High court of Gujarat at Ahmedabad, para 13.
[7] Anjanaben w/o Bhavinbhai Devshankarbhai Modha Versus State of Gujarat, Criminal suit No 20522 of 2023, Ruling of the High court of Gujarat at Ahmedabad, para 13.
[8] Chimamanda Ngozi Adichie, ‘We Should All Be Feminists’ (Iowa State University, Archives of Women Political Communication, 12 April 2023).
[9] Chimamanda Ngozi Adichie, ‘We Should All Be Feminists’ (Iowa State University, Archives of Women Political Communication, 12 April 2023).
[10] CBE International, ‘The Negative Consequences of Dowry Payment on Women and Society’ https://www.cbeinternational.org/resource/negative-consequences-dowry-payment-women-and-society/ accessed 12 March 2025.
[11] CBE International, ‘The Negative Consequences of Dowry Payment on Women and Society’ https://www.cbeinternational.org/resource/negative-consequences-dowry-payment-women-and-society/ accessed 12 March 2025.
[13] Christine Wanjiru Kung’u, Criminalisation of marital rape in Kenya, LLM Thesis, University of Toronto, 2011, 2-3.
[14] Winifred Kamau, Patricia Nyaundi and Jane Serwanga, The Legal Impunity for Marital Rape in Kenya: A Women’s Equality Issue (The Equality Effect, 18 July 2023) 4.
[15] Amnesty International, Kenya: Rape – the invisible crime, Report on the state of marital rape in Kenya, AI Index AFR 32/007/2002, March 2023, 2.
[16] Winifred Kamau, Patricia Nyaundi and Jane Serwanga, The legal impunity for marital rape in Kenya: A Women’s Equality Issue, 4.
[17] Constitution of Kenya 2010, art 27(5).
[18] Charles Omanga and another v Independent Electoral and Boundaries Commission and another [2012] eKLR; and Richard M Kagiri and 2 others v Minister for State for Provincial Administration and Internal Security and 2 others [2014] eKLR.
[19] Constitution of Kenya 2010, art 27.
[20] Henrik Ibsen, A Doll’s House (CreateSpace Independent Publishing Platform 2018) 7.
About the Author:
James Mulei is a third year-law student at Kabarak University.
