In this, their third article on battered wives psychiatrist FRANK NJENGA’and lawyer PAUL MWANGI discuss what the statute books say to protect the battered wife.
‘Slaves submit yourselves to your masters with all respect, not only to those who are good and considerate, but also to those who are harsh. For it is commendable if a man bears up under the pain of unjust suffering because he is conscious of God … wives, in the same way, be submissive to your husbands.” I Peter 2:18-20., 3:1-2.
While it is undoubtedly clear that Christianity forbids wife battery, the Holy Bible seems to advocate for the battered wife’s submission to the husband’s cruelty. For instance Ephesians 5:22-24 says: “Wives, submit to your husbands as Christ is the head of the church … Now,as the church submits to Christ also wives should submit to their husbands in everything.” The Bible seems to look more favourably upon the wife who when visited upon the pain and suffering of Job, remains steadfastly loyal to her husband.
Fortunately for many a battered wife, our secular laws are promulgated not to better our standing before the Lord but to enhance our immediate comfort. Laws have been made to allow the battered wife to take charge of her situation and not only alleviate her pain and suffering but also punish her matrimonial assailant. Laws also exist that grant reprieve to the battered wife who is forced by her circumstances to hit back at her aggressive spouse.
The Legal basis of protection for the battered wife is possibly Section 74 of the Constitution which provides that “no person shall be subject to torture or to inhuman or degrading punishment or other treatment”. Upon this legal provision, wife battery is outlawed under criminal law, matrimonial law and the Law of Tort.
Under the Penal Code, wife battery is outlawed in all its forms, from the subtle harassment to the grievous mutilation. For instance, section 238 of the code states that any person who intimidates or molests any other person is guilty of an offence and is liable to imprisonment for a term not exceeding three years. Intimidation is thereby described as threatening to injure a person’s body, reputation or property. Harassment is itself defined as interfering with a person in her private or professional life by whatever means, for example following a person from place to place or dissuading a person from entering any premises.
The provisions of section 238 are of particular relevance to many matrimonial circumstances. It is with intimidation and harassment that chronic wife battery begins. Women who fight against this subtle form of cruelty save themselves from the battered wife syndrome. Those who do not are later the subject of physical assault.
Physical assaults are outlawed under the Penal Code and any person found guilty is liable to imprisonment from a period of one year to life. A common assault, like a shove or a tempered blow could be punished with one year in jail while a grievous injury could be punished with life and corporal punishment. Death could be punished with life in the case of manslaughter and is punished with death in the case of murder.
The battered wife is also provided protection by the Penal Code against assaults of a sexual nature. This protection also ranges from the most subtle forms of assaults to the most grievous. A husband will be punished for indecently assaulting his wife, for having carnal knowledge of her without her consent or for having carnal knowledge of her against the order of nature.
For long, the issue of a husband raping his wife was a subject of great controversy which has only recently been settled. The law has finally conceded to the fact that a woman has a right to determine when and with whom she shall have sexual intercourse and to punish for rape all those who derogate that right regardless of whether they are married to her. This view of the law has become important to married women with the increasing seriousness of the Aids epidemic.
Lastly, the Penal Code protects the battered wife in instances where she has been coerced by her husband to commit an offence in his presence and under his compulsion.
It would be worthless protection for the battered wife if she were not allowed to testify in court against her husband. So while she generally will not be let to take the witness stand against her husband in a criminal case, the Evidence Act enables the battered wife to vindicate her rights under criminal law by allowing her to testify in cases where he has caused injury to her.
In addition to or as an alternative to criminal law, the battered wife can seek protection under matrimonial law. Here she petitions to the court to secure her rights as regards her marriage with the assailant husband. There are several remedies she may secure from the court, chief among these an order for divorce.
A court will grant an order for divorce to a battered wife who proves that her husband is guilty of mental or physical cruelty. Cruelty under matrimonial law is interpreted more liberally and includes conduct that is not criminal. Briefly, it is defined as conduct that is grave and weighty and such that the wife cannot be expected to tolerate. Some conduct that has been held by courts to amount to cruelty are excessive jealousy, humiliation, denial of sexual intercourse, persistent drunkenness, insults, nagging and sexual perversion.
The wife may however, not want to divorce the husband but may wish not to live with him. In this case she could petition the court for separation. An order of separation will relieve her from the duty to live with the husband. It will also be granted on grounds of cruelty. The order is usually the only remedy available for a religious wife whose religion prohibits her from divorcing her husband. It may also be useful to a wife who is ready to live with the husband upon his fulfilling a particular undertaking, for example undergoing mental therapy .
Where despite an order of divorce or judicial separation the husband continues to molest the wife, she can apply to court for a restraining order. Such an order prohibits the husband from interfering with the wife and may even forbid him from contacting her in any way or coming within a particular distance of her. If he failed to heed the order, he could be committed to jail for contempt of court.
Finally, a wife can sue her battering husband for damages. In this instance, she goes to court asking that her husband be condemned to pay for the damage he has caused to her. Traditionally, the conduct for which she could sue was limited and comprised chiefly of physical injuries. Today, the conduct has been extended to sexual assaults and even harassment. Even threats and conduct that causes mental anguish is today actionable.
Due to the nature of the battered wife syndrome, battered women do not seek legal redress as often as they should. They continue to helplessly suffer abuse until their mental capacity to suffer pain is exhausted. At such point they lose their senses and fight back, usually with grievous or fatal consequences to the husband.
