Can A Husband Rape His Own Wife?

Whether or not a husband can rape his own wife is a frequently asked question with mythical perceptions attached to it. The crime of marital or spousal rape is committed when a husband has non-consensual sexual intercourse with his wife. Whilst there is no explicit criminalization of marital rape, it shall be highlighted that the elements of rape are the same as those for marital rape. It shall be further clarified that the marital relationship between the spouses cannot be relied upon as a defence to the crime of rape.

The legal framework
The first piece of legislation that criminalised marital rape in Zimbabwe was the Sexual Offences Act [Chapter 5:16] which came into operation in 2001. It categorized marital rape as a non-consensual act which could be committed by both males and females. It attracted the same punishment as rape. This Act was repealed by the Criminal Law (Codification and Reform) Act [Chapter 9:23] (The “Code”].

The Code provides for the crime of rape in general. In terms of section 65 (1) of the Code rape is committed when a male knowingly has non-consensual sexual or anal intercourse with a female person. What is clear from the formulation of the crime of rape is that it can only be committed by
males. However one needs to understand that women can be charged with the equivalent crime of aggravated indecent assault in terms of section 66 of the Code. Aggravated indecent assault is of the same gravity as rape as a person found guilty of either of the offences will be liable to imprisonment for life or any shorter period.

“What is clear from the provisions of the Code is that marital rape is criminalized”

Can a husband raise the existing marital relationship as a defence to rape?

In terms of section 68 (a) of the Code it is not a defence to a charge of rape that the complainant was the spouse of the accused person, thereby confirming the existence of marital rape as an offence.

What is clear from the provisions of the Code is that marital rape is criminalized. The marital relationship between the perpetrator and the complainant is not considered as a defence to a charge of rape. The statutory provisions highlighted above dispel the myth that has been widely held over the years that a husband cannot rape his wife. This is a progressive position which is in keeping with international standards and recommendations that seek to protect the rights of women.

Prosecutor General’s Authority to prosecute
What has to be noted however is that a husband charged with marital rape can only be prosecuted upon the authorization of the Prosecutor General.
The leave of the Prosecutor General is a condition precedent to the prosecution of a husband charged with marital rape so that malicious prosecutions emanating from estranged spouses are curtailed. It has been argued that marital rape cases are not complicated and should be treated just like other criminal cases. Whether or not there is merit to this argument, the fact of the matter is that the Prosecutor General’s authority is a legal requirement which is specifically provided for in Section 68 of the Code.

It is concluded that a man can rape his wife. The Code lays the basis for marital rape prosecutions. The desirability of this position cannot be overemphasised. Be that as it may, there is great need for massive education of the general public on marital rape. The general public still holds misconceptions nurtured by religious norms and cultural values that husbands cannot rape their wives. Education will go a long way in dispelling misconceptions.

Given that the prevalence of marital rape is mainly due to ignorance that the acts committed constitute a crime, education will prove vital in the reduction of the incidences of marital rape as it deters potential perpetrators. The education will also empower victims to come out
and report the crime.

By Obey Chitowamombe

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