Peeling back the mask: Analysing the juxtaposition of marital rape and its legalese in Kenya
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 Leave a comment
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]
Marital rape as a human rights violation of women in Ethiopia: a case study of Alumni association of the faculty of law of Addis Ababa University and Ethiopian Women Lawyers Association (EWLA)
Posted: 15 March, 2022 Filed under: Kebkab Sirgew Gelaw | Tags: domestic violence, Ethiopia, Ethiopian Women Lawyers Association, EWLA, fundamental rights, government, legal standing, legal system, marital rape, marriage, psychological effects, rape, rejection, sexual distress 1 Comment
Author: Kebkab Sirgew Gelaw
International Human Rights Lawyer
The concept of rape of a woman by her husband in marriage was not a transgression at all because a man was allowed to treat ‘his chattel as he deemed appropriate’; thus, women who were forced to have sex in their marriage did not even have the option of seeking criminal prosecution.[1] The first marital rape case to reach the US court system took place in 1978 in New Jersey, when Daniel Morrison was found guilty of raping his estranged wife. Six months later, in Oregon, John Rideout became the first husband charged with rape while living with his wife.[2] Rideout was acquitted and brought attention to the concept that rape can exist within the context of marriage.
Many states in the US including Minnesota at that time defended forced sexual intercourse committed by a man against a woman and not his wife; though there have been subsequent prosecutions of marital rape, but in general, the cases were charged to win, primary because the question of consent is clouded by societal beliefs about marriage.[3]
AfricLaw 