The sleazy and scandalous confirmation process of Judge Clarence Thomas by the United States of America Senate to the Supreme Court brought out, more that any other incidence before, the strong emotional currents underlying the women’s liberation movement. Then followed the Lorrena Bobbit trial which one may say with tongue in cheek, brought the agenda of women’s liberation closer home. Then came Amos Wako who warned that in future, men who rape their wives would be charged with the offence.

The reception of Wako’s statement was mainly hosted by male leaders, from Archbishop Manasses Kuria, the C.P.K prelate, who termed them as “westernised and impracticable in the African social set-up”, to nominated Member of Parliament G.G. Kariuki who dismissed them as “nonsense”. Wako was even accused of inciting women against their husbands. But to give Amos Wako his due, his suggestion is possibly the most sensible he has ever made as Attorney General.

For centuries to date, the idea of a woman becoming the property of a man upon marriage had pervaded the world’s social and legal thought. ‘Petruchio’ in Shakespeare’s ‘Taming of the Shrew’ written in 1596, says: I will be master of what is mine own, She is my goods, my chattels, she is my house, My household stuff, my field, my barn, My horse, my ox, my ass, my anything. This social attitude towards women found expression in the law and writing in 1765, the most authoritative “Blackstones’ Commentaries on the Laws of England” wrote: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during marriage or at least incorporated and consolidated into that of the husband.” This legal philosophy gave birth to the position in law that a man cannot rape his wife. Indeed, writing in the same century, a leading legal scholar, Sir Mathew Hale, stated: “A husband cannot be guilty of a rape upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind (sexual) unto her husband, which she cannot retract”.

This view was upheld in England as recently as 1953 by a judge who held: “Until the consent given to marriage be revoked, how can it be said that the husband in exercising his marital rights has assaulted his wife”. In that case the English court refused to convict a man for rape who broke into his estranged wife’s home and forcefully had sexual intercourse with her. The court found that the law of rape did not apply since the couple was not divorced, though the wife’s petition for divorce was in court awaiting hearing.

The second half of the 20th century has however seen many changes in the legal philosophy on women. Starting from as early as the late 19th century, the law began to recognise the woman as an independent person. A legal term femme sole, was used to describe the legal independent character of the woman. Many of the liberties that were denied the woman were now gradually granted under this new legal philosophy and by 1960, the right of the woman to decide when to have sex, even in marriage, was accepted. By 1991, rape law was being applied to marriage in England.

In two of the leading English cases on marital law decided in 1990, the judges came out strongly in support of punishing husbands for the rape of their wives. One said: “Logically I regard it as the only defensible stance, certainly now as the law has developed and arrived in the late 20th Century. In my judgment, the position in law today is that there is no marital exemption to the law of rape”. The second judge used stronger words stating that the exemption of husbands from rape law “is as offensive a fiction as it is senseless. No wife, at any time has been required by any law to submit to this sort of behaviour”.

But resistance persists against a law against marital rape. Criticism is however not based on the 19th century legal philosophy. For no one can be heard or want to be heard defending the immunity of husbands on such archaic thought. The criticism today is on legal technicality and social utility. It falls under five arguments.

Firstly, it is argued that criminal law contends that a woman who is sexually assaulted by her husband needs the protection of family courts which can issue injunctions to prevent further harassment. Criminal law should only be as a last resort. The proponents of wife-rape law however state that there is no reason why the rape of a wife should be any different from the rape of a stranger. If criminal law has no place in marriage on the issue of rape, neither should it have a place in marriage as regards kidnapping, assault, murder etc. The fact of marriage should not thus by itself exclude criminal law.

Critics of wife rape then argue that it is useless to apply rape law to marriage as it would be impossible in most circumstances to prove the crime. Since sex in marriage is presumed legal, the mere fact that the man had sexual intercourse with the woman has no probative value and unless some other physical injury exists, no case can be established. Police officers are thus definite to be engaged in time wasting investigations.

But this is wrong criteria of determining whether an act is criminal or not. Criminal law is based on culpability and not convenience. If it were otherwise, many crimes that are today difficult to prove would have to be removed. In any event, rape is already a difficult crime to prove, but no one has suggested that it be removed. The challenge lies not in the law maker but the law enforcer.

A third challenge of rape-law in marriage, which has had particular currency in Kenya, is
that it opens a pandora’s box of malicious prosecutions at the behest of vindictive wives. This is an argument with which the critics of marital rape shoot themselves in the foot. If marital rape is impossible to prove as they argue, then it is a very harmless weapon in the hands of the most vindictive wife. And it is not the only weapon in the hands of wives today. Though they can institute malicious prosecutions on assault, harassment, sodomy, etc, there is no evidence that they have done so.

The wife is more likely to change her mind about prosecuting her husband and withdraw the complaint, it is further argued. This has been experienced widely concerning complaints of assault. But no one has called for a husband’s immunity from the assault of his wife on the basis of the experience with assault charges made by wives. And it would be outrageous to deny a deserving victim protection because others have preferred to forgive.

The fifth criticism is related to the first and says that the wife does not need the protection of criminal law as she has several remedies in family law including divorce. But rape cannot be looked at as matrimonial misconduct. It is an act that leaves deep emotional and psychological injury on the victim and it is usually accompanied by physical harm. Secondly, the existing remedies have shown themselves to be ineffective due to their impersonal and double – edged effects. A divorce decree usually harms the woman more than the man. It is difficult for non-working wives to leave home, set up a new residence, start and meet the costs of divorce proceedings etc. A remedy is needed that is adequate and fair to the victim. It must also be expedient.

The difficulties that would be occasioned by a law on marital rape are not denied. Such difficulties are experienced by every new law that revolutionises legal philosophy. Indeed the difficulties Kenya will have implementing rape law in marriage cannot be compared with, for example those experienced by America after the 1954 decision of the Supreme Court in Brown vs Board of Education. The decision in that case declared the centuries old tradition of racial segregation unconstitutional. Despite the fact that America had gone to civil war on the segregation of Blacks, and the South had sworn not to obey the Supreme Court decision, the law took root and has flourished ever since.

Rather than use the difficulties expected against the rationale of the law, debate should be centered on the caution to be heard in crafting the requisite legal provisions and in the reinforcement. And most importantly, the debate must not be conducted along gender lines as has been the short experience in Kenya. Only then can we avoid unproductive arguments, like that of the Brazilian Macho movement, an organisation of men to protect the male society, which remarks that “the best women movement is that of the hips”

• The author is an advocate and former Managing Editor of the Nairobi Law Monthly.