The reality
The person who lives in a secure environment is not likely to understand the rape phenomenon. When our lives follow certain patterns almost undetermined, it is not likely that we could appreciate the trauma of an unforeseen occurrence of the loss of all our belongings, dismissal from a job, divorce, wrongful arrest, violent robbery etc. Each of these occurrences are so unimaginable in our everyday lives that when they happen, they shatter the life we live, distort the assumptions of security we held and make the resumption to normal life well near impossible.
Rape is one such unimaginable occurrence. A woman’s sexuality belongs to her most private sphere, that zone of inviolate personhood. Every girl and every woman grows up knowing this. She is brought up to determine her sex life, to look forward to an orderly sexual relationship and most important to exercise her right to say “yes” or “no” to male courtship judiciously. She grows up only ready to surrender her virginity to “the right man”, and never ready to have a sexual relationship with “the wrong man”. Her entire sex life is based on this right of choice, the right to say “yes” or “no” and the expectation that these rights shall be protected.
Every rape therefore, shatters the basic assumptions upon which the woman’s sex life is organised. In essence, it shatters the sex life. It does to sex life what infidelity does to a marriage, only much more so. Because the assumption of the woman that she will always have the right of consent to sex, and that the destiny of her entire sex life depends on the exercise of that right, is deeply entrenched in her mind, is possibly the first thing she learns about her sexuality. It is an assumption that is older than her sex life. When this assumption is shattered, her sex life is distorted, robbed of its quintessence ad changed forever.
But rape is much more than just an issue of non-consensual sex. It is about human worth.
A woman consents to sex with a man with the expectation that the man respects her individuality and is not just moved by the heat of the moment. She therefore expects consideration and gentleness. Rape sunders these assumptions and is a violent intrusion into a woman’s physical, emotional and psychological space.
All of us, women and men alike, orient our lives around belief systems, psychological expectations and certain emotional desires. When these are shattered recuperation is difficult. Thus the terror of the act of rape. It opens in the woman a deep feeling of powerlessness and worthlessness.
Having been terrorised through an act of sex she may co e to cringe at the very thought of sex. In dealing with the issue therefore we should pay attention the violation, the humiliation and the trauma generated by non-consensual sex.
More trauma
Unfortunately, for women, the trauma for rape does not end there, its effects go deeper. Firstly, because rape is committed by a directly identifiable group of people, men. These are people every girl has grown up amongst, people she has as father, brother or friend. They are people she has come to love as fellow human beings, people who she trusts. Rape shatters all the assumptions she held about them.
Secondly, rape occurs within the woman’s social life. It thus has equally disastrous effects on her social security. It shatters her assumptions about her social life: the assumption that she can keep her job if she is competent, that she can have a male friend, that she can walk home safely, that she is safe in her house etc.
Consider a situation where a woman is assaulted by unknown people in a place she feels safe, possibly a path near home she has always walked along for several years. Five men emerge from nowhere, intrude into her peaceful walk, grab her, drag her into the bush, tear her clothes off, rape her in turn and, as fast as they came, leave her sprawled on the ground. The victim is unlikely to ever feel secure again, for if she can be raped where she felt safest, she can be raped anywhere.
The violation
A less easily discernible effect of rape on the woman, and paradoxically the worst effect, is the feeling of violation. As stated above, rape violates the basic assumptions of a woman about her sex life. It derogates her most fundamental right in regard to sex, her right to choose.
Rape is as much a derogation as being forced into slavery, or having one’s property compulsorily acquired without compensation, or being detained without trial. Each of these derogations are based on the same principle; that the victims right is insignificant.
Rape also violates the woman in a more personal manner. It reduces her into an instrument. An instrument for the use of men in achieving sexual gratification. This violation is perpetrated not only by the intention of the rapist, to use the woman to achieve sexual satisfactions, but also by the way rape is committed. Rape starts with the desire for sex and ends with its gratifications.
Often overlooked is that the violation is especially compounded by the terroristic nature of the act. Psychologically speaking rape has attributes of the sadistic drive. One definition of a sadistic drive given by psychoanalyst Erich Framm is the desire to exercise absolute control over a living person. Framm observes that by absolute control a human being loses the very attributes of life: freedom. And in this manner, a living being is converted into an inanimate, manipulated object.
One of the difficulties women face in trying to articulate the sense of violation that they feel at the very thought of rape is the fact that men just do not seem to grasp what it is women mean. Perhaps part of the explanation is to be found in the sociology of rape.
The act of rape is the manifestation of the differences in gender power. In other words, rape is one deviant form in which the power of the male sex over the female sex finds expression. This is a controversial claim but it finds expression in many of the social attitudes about women and sex.
Examples abound. A man who says that he is all for stiffer penalties for rapists confesses that he doubts that he would be able to look at his wife the same way if she were raped. Pressed to explain, he admits he might be even tempted to be separated from her. What assumptions are concealed here?
The first one is clearly the assumption that rape has soiled the woman, violated her in a visible manner that makes unacceptable to the man. The terrifying thing about this assumption is the fact that it is the man who feels violated personally. In other words, he does not see the issue as that of the violation of his wife’s personhood. It is affront to his ego.
The second assumption is that the woman is somehow responsible for the rape. Why else would the man want to penalise her with a separation? Is this perhaps not traceable to the assumption that society often makes that if a woman is raped she has somehow invited it.
In other words, a husband whose wife has been raped may come to feel a lot like the husband whose wife is adulterous. To the wife who has been raped this implicit condemnation by the person closest to her, the husband, is the ultimate rape.
Perhaps the way to finally make men understand the essence of violation is to personalise the meaning of violation in terms they would understand. How would you feel If you were assaulted by two men and sodomised? Everyman who seriously considers such a prospect will break into a sweat, drop his lower jaw and tremble, coming close to assaulting the inquirer.
The reason of course is that such an action is the worst violation of a man, the smashing to smithereens his male essence, his most fundamental core as a human being. I always argue that the situation is the same for rape and women.
“But at least for women,” the man argues, “sex is natural. The fact that it is non-consensual cannot make it an equal violation to sodomy on a man.”
“No sex is natural to a woman,” I argue, “unless it is consensual. Non-consensual sex is as unnatural to a woman as sodomy is to a man. And they are both equally violating and debasing.”
The “yes” and “no” of a woman has been the subject of great controversy and notoriety. When can it be said that a woman said “no”?
This can be left to each person’s sense of humour if it didn’t always arise in the determination of guilt or sexual assaults.
There is little difficulty in assessing the lack of consent in violent rapes, where direct physical force is used against the woman. Difficulties, however, arise in the psyche-rapes, where consent is obtained through the use of psychological intimidation. Only an example could illustrate such a situation.
A timid young lady is employed in the civil service and attached to the desk of a cabinet Minister. Everything about the new situation intimidates her: The Minister himself, the power he wields, the personality he carries, his wealth, bodyguards, the gun he carries, the absolute discretion he has over her employment.
In less than a week of her being at his desk, he asks to have sex with her. Ca anyone seriously expect, knowing her timidity and the minister’s both real and psychological power that she could say “no?” Would her “yes” under such circumstances constitute consent to sex?
If one was follow the insistence of the exercise of “free will” that the law makes in all other situations of consent, then the Minister has definitely committed rape by using his position over the lady have sex with her. The law says there is no consent when an accused person makes a confession, coercive or tempting: there is no marriage in the absence of free consent of all parties: there is no marriage is no commercial contract in the presence of undue influence.
How can there be consent to sex where the woman cannot withhold the possible retaliation by the man? The basic tenets of “free will” in law say a woman in such a situation cannot consent to sex.
20.8.92 A gang of men rape a 40-year-old woman and her 3-year-old child at a village in Nyandarua District
3.10.92 – Two uniformed police officers rape two. school girls, aged 12 years and 13 years. The girls had approached the police men for help after they were stranded at the Nairobi International Show.
8.12.92 – Seven women are raped and then shot dead by an unknown number of gangsters in Logbogollocation, Wajir District. 14.1.93 A twenty-man gang raids Hawinga School in Siaya District and rape 15 girl students.
27.3.93 – Girls from Njenga Mixed School in Kirinyaga are raped by their male counter parts from Kerugoya and Baricho Boys’ School.
The issue of responsibility
Rape law implies a responsibility for men when dealing with women. That is why having sex with a girl under 14 years, whether she says yes or no is a crime, for the presumption in law is that she cannot freely consent. For similar reasons, there must be a presumption in law that a woman who is under the psychological influence of a man cannot freely consent to sex where such influence militates against her freely withholding her consent.
Such psychological influence will be found in relationships between teacher and student, employer and employee, guardian and protégé, policeman (or judge) and a party in legal proceedings, doctor and patient, ruler and subject etc.
What of women? Is there any legal responsibility on them not to tempt the commission of rape?
All legal arguments say NO. She has a right not to be assaulted and that right cannot be compromised in favour of the wrongdoing of a criminal. Even arguments in commonsense dictate against such responsibility.
For one, similar responsibility will have to attach in the case of other crimes. The rich people would have responsibility not to tempt thieves to steal from them. All activists would have a responsibility not to tempt governments into detaining them or eliminating them.
Such responsibility would also compound the question of cause. The cause of rape is men not women. No one is allowed to do that which is wrong simply because of temptation. “You cannot walk into a restaurant and pick another person’s steak from his plate and then claim you found it tempting. He has a right to have his steak in peace and you have no right to take it, even if you felt tempted or offended”, observes one lawyer.
Meta-rape
So do the sorrows from rape.
Our society is always ready to add onto the woes of the rape victim, to exacerbate her injury.
The rape victim, like every other aggrieved person, desires sympathy and redress. She wants to purge herself from the crime and to get even with her assailant. There is no reason why she shouldn’t achieve both. She is the victim, he is the criminal, period. It’s black and white.
Her worst nightmare, more traumatic than rape itself is to be judged along shades of gray to be made to share the blame and punishment with the rapist. It may be a husband who cannot look at her in the same way, who thinks she is impure. It may be the police who wants to know what she was doing out alone at night, or the court which wants to know why she didn’t scream.
The effect is to make her partly responsible for the rape.
This further assault on the woman may be considered as another form of rape, an emotional violation, or what a Nairobi lawyer, Wachira Maina, call meta-rape. It is the fear of Meta-rape that prevents women from reporting the crime, from filing criminal charges, from telling friends and relatives. The fear of meta-rape isolates the victims in a cocoon of pain and misery and makes it impossible for her to resume normal life.
A tombstone
On 14th July 1991, boy students of the St. Kizito School in Meru
went into an orgy of rape against their fellow female students.
More than 50 girls were raped. Nine-teen more died. These were:
· Flora Mwari
· Jane Kaloki
· Tabitha Mwari
· Flora Rombolo
· Faith Gachuama
· Stella Kawira
· Frida Kathure
· Viola Karambu
· Edith Teel
· Jane Kithure
· Margaret Mwingathia
· Martha Murunga
· Ruth Laiboni
· Nancy Gacheri
· Brenda Kinya
· Judith Kabirithu
· Dorcas Mworochia
· Sarah Kaimuri
· Elizabeth Nkuene
The Institutions of Law
It looks all to fair for the rape victim to be treated like other victims of crime: to be asked to prove her lack of no consent, to be made to justify her actions towards the alleged rapist, to be vigorously examined and cross examined on her testimony and to be dealt with under the same legal machinery and by the same personnel like everybody else (including having her case discussed and her photograph displayed by the press).
But the reality of rape requires that special treatment be accorded to the rape victim, that she be availed some gender-space in all the legal machinery.
Rape is a gender assault, and it instils I the victim a male phobia. And just rape law must recognise this, and the fact that the human race is made up of only two sexes. As every legal institution must have a man in it, the law must give that further accommodation to the rape victim, a gender accommodation.
She must be protected from offensive male attitudes and from meta-rape. Every person who deals with rape victims in legal institutions must be sensitised to the crime. The legal procedures and orders must be tailored and made with regard to the rape victim. Presently, legal institutions are a for a where a lot of meta-rape is committed.
The Courts of Law
Further to failing to create gender space for rape victims, the courts of law in Kenya do not understand the offence of rape.
To many judicial officers, rape is as simple as it is defined in the Penal Code i.e the unlawful carnal knowledge of a woman without her consent. That is why the average punishment for a rapist is a prison sentence ranging between 6 months to 6 years.
Our courts fail to appreciate rape as an assault, a grievous assault. When sentencing the rapist the court seems to be saying “Hey, that was not fair. You know the law says you must seek the consent of the lady to have sex with her. You will go to jail for one year so that you learn to ask for permission.”
To the court, the rapist is never a dangerous criminal; he is just another guy who likes to have his way.
