NAKURU TOWN CAMPUS COLLEGE

FACULTY OF LAW
DECEMBER 2020 – MARCH 2021
LLBE 424: LEGAL RESEARCH AND WRITING VII

ELVINE ALUDA AMOSHE

L11/10885/17

MARCH 2021
 BLURRED LINES OF MARITAL RAPE IN KENYA

INTRODUCTION

Parties to a marriage enjoy conjugal rights in the marriage and therefore there is always been this
supposition that there is implied consent for sexual activities any time any spouse deems fit. However,
the marital privileges of women have constantly been undermined relying on the grounds that it is
normally expected by virtue of getting married she as a result, does not have a say on her conjugal
rights. As a result emergent thereof spousal sexual assault has since remained fairly alien in the African
setup and specific Kenya. It is not clear why it is not viewed as culpable wrongful conduct in the
country. These women who fall, victims, to such spousal rape suffer in absolute silence because the
term marital rape has never been provided for by the Kenyan legal system.

The Sexual Offences Act is the capital legal instrument that regulates sexual offenses in the country. It
defines rape under section 3(1) but does not include or even suggest marital rape as a form of rape. It
also provides for intentional and unlawful acts that amount to sexual offences under section 43 but
exempts its applicability to legally married person.1

The silence in the law therefore expressly legitimizes marital rape as a form of violence directed
towards women. This is definitely a human rights crisis that calls for immediate legal redress and social
redress. Furthermore, the state‘s constant failure to criminalize sexual assaults in the country severs the
standard of due diligence and it fails to be in compliance with the international human rights standards
and norms. This highlights that there is a major significant gap in the legal instruments in Kenya that
make sure legal impunity for men who sexually abuse their wives.

STATEMENT OF THE PROBLEM

Marital rape in the Kenyan jurisdiction is not recognized as an offense that bears the capacity of
criminal liability. This exemption, therefore, gives a serene environment for this kind of human rights
violation and criminal offense. The exemption expressly contravenes the Constitution’s true spirit and
other international treaties and conventions relevant to the issue. It undermines and violates various
fundamental human rights principles for instance the fundamental freedom from cruel and inhuman
treatment, the freedom from all forms of discrimination and the right to equality. Consequently, victims
of marital rape are left without any remedial action.
1
Section 43 of the Sexual Offences Act (No.3 of 2006)
JUSTIFICATION OF STUDY

This study relies on the basis that section 43(5) of the Sexual Offences Act impedes spouses from
seeking redress on matters concerning marital rape. This clearly contravenes Article 27 and 45(3) of the
Constitution of Kenya 2010 (COK) that provide for equality in marriage. It also goes against the
Convention on Elimination of Discrimination Against Women (CEDAW)2 and the African Charter on
Human and People’s Rights (Banjul Charter),3 which are laws applicable in Kenya subject to article
2(6) of COK.

The research paper aims at determining the status quo of spousal rape in Kenya. It will shed light on the
loopholes that exist in the domestic legal system concerning this issue in comparison with international
human rights instruments that provide for marital rape. This research paper is essential in establishing
that there is a dire need for guidance on the legality and constitutionality of the criminalization of
marital rape and if its manifestations are well protected under the freedom from discrimination and
right to equality of parties to a marriage.

RESEARCH QUESTIONS

1. What are the legal and social effects of section 43(5) of the Sexual Offences Act?

2. What are the modern defenses of exemption of marital rape?

3. What are the limits of conjugal rights granted to spouses?

4. What stand do critiques of marital rape exemption take?

RESEARCH OBJECTIVES

The research paper puts its focus on marital rape as a form of domestic violence that is often
overlooked by society due to patriarchal ideologies that emphasize male superiority in marriage and
myths justifying marital rape. The objective of this research paper is to:

1. Determine the current laws on marital rape at the national, regional, and international levels.

2. Examine the social and legal effect of section 43(5) of the Sexual Offences Act.

3. Examine the limits of conjugal rights granted to spouses and exclusively discuss the rights of
married persons.

4. Have insight and understand the critiques of marital rape exemption and have a look at the
modern defenses of marital rape exemption.
2
Article 2 of the Convention on Elimination of All Forms of Discrimination Against Women.
3
Article 3 of the African Charter on Human and Peoples’ Rights.
5. Analyze the legal inclination of marital rape in jurisdictions that have criminalized it.

6. Propose the dire need to have a separate legal provision that creates the offense of marital rape.