A closer look at Consent and rape in Marriage and Relationships

Consent is agreeing, giving permission or saying yes to anything that is about to be done to you or with you. Consent has to be freely given, the person giving the consent has to be of a sound mind, and for consent to be valid it has to be made by a person who has been given all the information. In sexual encounters, the parties involved should know that they have the right to say “Yes” or “NO” to the sexual activity at any point. The principles of consent are the same in Medical treatment, patients have the rights to refuse treatment or stop treatment at any time. The only people that are deemed not able to consent are the children, people with cognitive disabilities and people under the influence of drugs or incapacitated. Consent in medicine is slightly more complicated especially when it comes to pediatric patients. The purpose of this paper is to discuss the principles of consent and analysis of consent and marital rape.

Firstly, consent should not be assumed, it has to explicit, consent should never be taken from a person’s body language, the way a person is dressed, looks or acts that they want to do the activities you want them to do. You also cannot assume the person will agree to act based on the fact that they have agreed to the same act in the past.  In marriage or relationships, the sexual encounter has to be consensual, before 1970 very countries in world prosecuted rape within marriage. Three or four decades ago, it was very hard to prosecute rape within marriage.

From 1976 – 1994 Australia introduced a number of reforms due to the wave of feminism and changing societal attitude to sex and sexual activity. Before the change in the law, a husband right to sex was enshrined in British common law, essentially this stripped away the rights of the women to choose what they wanted in a marriage. Prosecuting rape or abuse that happens in marriage is very hard because they hard to prove. It is essentially the woman words against the husband, relationships between people that have been together for a long time are often harder to prosecute. Even though the law has changed to state that rape within a relationship can happen and is prosecutable by law, the culture has not changed on its views of sex in marriage. Society is still stuck on the ideals of conjugal rights in a marriage. And when you start giving rights to one group of people, you are invariably taking rights from others, saying that a husband is entitled to sex means the wife does not rights to say “NO” to sexual acts within marriage.

https://en.wikipedia.org/wiki/Domestic_violence#/media/File:A_Husband_Beating_his_Wife_with_a_Stick_-_Google_Art_Project.png

Another reason rape in marriage is hard to prosecute is multiculturalism, what you have now in multiculturalism is essentially a battle of world-views. Some cultures view women as second-class citizens, in certain cultures, it is ok to beat your wife to get her in line. In Saudi Arabia for example, women cannot make any major decision with the permission of a man. when it comes to rape, even though in most Islamic countries rape is punishable by life in imprison, the problem is the burden of proof that is put on the victim. For a rape verdict to actually be handed down, it has to have either a confession from the rapist or witness accounts from four adult males. The problem is when these cultures migrate to countries where woman have power and think they can treat women the same as they used to in their native country.  It is even harder when the victims of violence have accepted it, and in these cases, the prosecution is dependent on the woman bringing the charges.   And even when the charges are brought verdict is dependent on whether there is surrounding evidence, either the children testifying to the violence or members of the community that witnessed the abuse.  In Zambia according to Lusaka statistics show that Zambia has the highest levels of domestic violence in southern African.

According to Lawrence Musunte who is founder/senior pastor of  Grow Mission Cape Town

“Violence against wives is not implicitly taught. However, Africa is hugely a patriarchal society. It’s the world of Men. And traditionally once he paid lobola ( bride price) he is your man. If he abuses his wife, she can’t run back to her parents home because they would take her back to her abusive husband. Consequently, women comforted themselves that marriage is an “endurance club”. And that a jealous husband loves you. If he is not beating you then he doesn’t love you, hense Women themselves encourage it”

This could explain why domestic violence is at a record high in Zambia. According to an article that was published on cajnewsafrica.com.

“43 percent of all females experienced physical violence at least once since age 15, and 17 percent ever experienced sexual violence in Zambia. “

Finally, the statistics that was looked in Zambia cannot be trusted, while it is true that domestic violence is a big problem. The studies cannot be fully trusted, due to the fact that these are survey and survey rely on self-reporting and are dependant on sample size. That is why any studies about domestic violence or violence against women should be taken with caution. Because other studies have shown that most Zambian disapprove any forms of domestic violence. On the other hand, this could be underreported because as studies have shown, domestic violence is largely underreported making it very hard to prosecute.

Reading

  • Dobraszczyk, C. (2012). Rape in marriage. Bar News: The Journal of the NSW Bar Association, (Winter 2012), 37.
  • Kilpatrick, D. G., Best, C. L., Saunders, B. E., & Veronen, L. J. (1988). Rape in marriage and in dating relationships: How bad is it for mental health?. Annals of the New York Academy of Sciences528(1), 335-344.
  • Yllö, K., & Torres, M. G. (Eds.). (2016). Marital rape: Consent, marriage, and social change in global context. Oxford University Press.
  • http://afrobarometer.org/sites/default/files/press release/zambia/zam_r6_pr_domestic_violence_correction.pdf
  • Mais Haddad, Victims of Rape and Law: How the Arab World Laws protect the Rapist not the Victim, JURIST – Dateline, May. 9, 2017, http://jurist.org/dateline/2017/05/victims-of-rape-and-law-how-the-arab-world-laws-protect-the-rapist-not-the-victim.php