Marital rape

Marital rape is non-consensual sex in which the perpetrator is the victim’s spouse.
The practice of marital rape is rooted in the rubric of the family and premised on the
social norm that gives a husband the right and power to control marital intercourse. The
basis for marital rape in Uganda originates from traditional practices that subordinate
the status of women such as customary marriage which is concluded through the giving
of bride wealth. The practice of giving bride price exacerbates power relations in
marriage, giving more power to the husband to demand anything of his wife, including
sex, which leaves women with little autonomy or ability to refuse unwanted sexual
intercourse.
The belief in Common Law was that upon marriage, a wife “gave” up her body to her
husband, and with this, her irrevocable consent to sexual intercourse.

R v Miller ([1954] 2 QB 282), The defendant, Mr. Miller, had been the husband of the
victim who, at the time of the alleged offence, had left the respondent and filed a petition
for divorce on grounds of adultery. During this period, the defendant met with the victim
and had intercourse with her against her will. This caused the victim to suffer significant
mental distress. The defendant was charged with both rape and, in the alternative,
assault occasioning actual bodily harm under section 47 OAPA. An appeal was brought
on the basis that the defendant had no case to answer; a husband could not rape his
wife, as a wife impliedly consented to intercourse for the duration of the marriage.

The court held that the appellant could not be guilty of rape, as the implied consent of a
wife to have intercourse with her husband could only be revoked by court order or a
binding separation agreement. In the circumstances, this consent had not been
revoked. Lynskey J ruled that a husband had no case to answer on a charge of rape of
his wife

In Uganda, rape in marriage is only minimally recognised as a specific criminal offence.

The Penal Code does not recognize this offence. It is only in the Domestic Violence Act
where sexual assault is identified as a crime under the definition of domestic violence.
Thus, a victim of such occurrence can only make a claim under the general provision of
rape in the Penal Code or in this particular section of the Domestic Violence Act
(Domestic Violence Act 2009, s 4(2)).
However, it should be noted that the provision in the Penal Code does not allow a wife
to frame her case as a specific offence of matrimony. Rather, it envisages a situation of
rape of a married woman only by a man who is not her husband. This is on the premise
that the vows made at the ceremony of marriage are consent for sexual relations during
the union.

The exemption of marital rape was only abolished in 1992 in the English case of
R v. R ([1992] 1 A.C. 599). The defendant married his wife (complainant) and after the
marriage did not work, she moved out and took her son to live with her parents. At the
time of the incident in November 1989, they were separated but not legally divorced.
The defendant broke in to her parents’ home and attempted to have sexual intercourse
with the complainant who did not consent. The defendant was charged with attempted
rape under s1(1) of the Sexual Offences (Amendment) Act 1976 and with assault
occasioning actual bodily harm under s47 Offences Against the Person Act 1861.
The court upheld his conviction for attempted rape. The judgment in this case affirmed
that “the fiction of implied consent has no useful purpose to serve today in the law of
rape” and that the marital rights exemption was a “Common Law fiction” which had
never been a true rule of English Law. The concept of irrevocable consent of a wife to
her husband was classed as unacceptable concept in modern times; each is seen as
equal partners in a marriage. The relationship between the parties to rape does not
matter; rape is rape.

The case of Uganda v Hamidu (HCT Criminal Session Case 0055 of 2002) follows
the advances made under English Law in regard to rape in marriage. In this case, the
defendant denied charges that he had hired two men to abduct a woman in his village
and had subsequently raped her in a way to CONSUMATE the marriage . He claimed
that he had paid dowry and thus married the woman, and that under Customary Law,
she had implied consent to sexual intercourse and could not be raped. The woman
argued that she had broken her engagement to Hamidu when she learned that his
former wife had died, possibly of AIDS, and had agreed to test for HIV before marrying.

Justice Kibuuka Musoke convicted Hamidu of the rape charges, finding no evidence
that the couple had been married or that the woman had consented to sexual
intercourse. The court further held that even if the couple had been married, women
were constitutionally entitled to equal rights in marriage and the right to human
dignity; thus, the woman would not have been obligated to submit to sexual
intercourse against her will:
“But even if it had been true that A1 and PW2 were married as husband and wife, the
circumstances of this case would render A1 guilty of rape. Section 117 (now 123) of the
Penal Code Act does not make any exception to a married person. The existence of a
valid marriage between an accused person and complainant or an honest belief that a
valid marriage between the two exists can no longer constitute a good defence against
a charge of rape in light of Article 31 of the Constitution which provides for the right of
men and women of the age of eighteen years and above to marry and found a family
and grants them equal rights during marriage and at its dissolution. ... Under Article
31(1), (3) and (6) of the Constitution, women should be accorded full and equal dignity
of the person with men and laws, cultures, customs or traditions which are against the
dignity, welfare or interest of women or which undermine their status are prohibited by
the Constitution. ... In light of the above provisions, Article 273(1) of the Constitution that
provides for the existing law to be construed with such modifications, adaptations,
qualifications and expectations as may be necessary to bring it into conformity with the
Constitution, has an amending effect on section 9(1) of the Penal Code Act in that it
expressly excludes the operation of the doctrine of presumption of consent in that
section even where a man and woman are validly married because its operation would
be unconstitutional. No activity on the part of any of them, which is an affront to those
rights, can be sustained by a court of law. ... The complainant was subjected to the
highest level of human indignity by treating her as a sexual instrument. It was a unique
and extraordinary show of sexual savagery. Her dignity was trampled upon significantly.
In these circumstances, A1 cannot present the fact of PW2 being his wife or his honest
belief in the truthfulness of that fact as a defense. It is ruled out by the Constitution.

Further in the case of Uganda v. Nakoupuet Crim Case 109/2016, The accused was
charged with rape, contrary to sections 123 and 124 of the PCA. The prosecution
alleged that he had unlawful carnal knowledge of the victim, a one Loballa Sunday,
without her consent on 22 Dec 2015.The defence only denied participation. The
prosecution relied on two witnesses’ oral testimony:

- PW1 – the victim testified that she was married to PW2, who was yet to complete
the payment of the dowry (in form of cows).
On the day of the crime, the accused had met her at her father’s home and expressed
interest in her. He bought gin for her father and brothers, who entertained him from 5:00
pm to 2:00 am. The accused then forcefully abducted her to his home, but she escaped
and returned.

The victim did not consent to the new marriage arrangement, although the accused had
paid part of the dowry. PW2 met her quarrelling with her parents and brothers, who
wanted to receive her dowry from the accused.

The following morning, the victim’s family forced her to go with the accused as a wife;
she refused, but her brothers forcibly dragged her to his home. She fought him off, but
her three brothers held her to the floor and the accused had forceful sexual intercourse
with her. He made her his wife without her consent.

- PW2 – he testified that he was in the process of paying the entire dowry when his
father in law allowed the accused to abduct his wife. He witnessed the abduction
in broad daylight – a group of people he recognized escorted the abductors ‘in a
crowd full of women making noise.” They had dragged his wife to the home of the
local chairperson. PW2 reported the matter to police, who raided the home of the
accused the following day and arrested him.
PW2 took his wife to the Police, and the medical examination showed bruises on her
back, corroborating her testimony about the manner and circumstances of the rape
inflicted on her.

Defence: the accused made a general denial, stating that he did not know the victim
and her parents, denied his residency of the locale, the abduction and the act of rape.
He claimed that he was with his wife throughout and never met the survivor in all his life.
There were no witnesses to support his claims.

The court found the accused guilty, basing on a number of factors:

denials did not create any alibi.

Discussion on ‘the backward culture’

Batema, J observed that most women and girls in Karamoja region are victims of the old
culture of abduction and rape: it is accepted and tolerated. The habit of the rapist saying
“I only made her my wife” is common practice: what we understand as rape seems to be
a rite of passage into the institution of “marriage.” This is a manifestation of the
commodification of women and girls.

He condemned the culture of forcefully chasing, abducting and raping girls and women
‘to make them wives.’ “The vice of cultural rape is a resilient, pervasive and persistent
practice promoting gender stereotypes.”

He relied on Article 5(a) of the CEDAW – which imposes a duty on the government to
modify customs that promote discrimination against women.

“Culture is dynamic and not static. It changes from time to time and from place to place.”

Respect for human dignity

The judge held that rape is a form of torture, cruelty, inhuman and degrading treatment
that offends Article 24 of the Constitution – and there is no derogation permitted from
this provision pursuant to Article 44. Furthermore, Article 32(2) directly prohibits
traditions that are against the dignity, welfare and interest of women or any marginalized
group...

Under Article 274 of the constitution, judges may construe existing law with such
qualifications, modifications, adaptations and exceptions as may be necessary to bring
the same into conformity with the Constitution. This forms the legal mandate for judicial
officers to condemn the negative culture of rape through imposing appropriately punitive
sentences – which “must send a clear message to the accused person and anyone
intending to abduct and rape the women of Uganda that it is a serious capital offence.”

A woman’s right to choose a spouse

Article 6 of the Maputo Protocol, to which Uganda is a state party – ensures that women
and men enjoy equal rights as partners in marriage: Uganda has enacted appropriate
laws to guarantee that no marriage shall take place without free will and full consent of
both parties.

Article 16(1)(b) of the CEDAW provides for the right to freely choose a spouse and to
enter marriage with free and full consent.

Article 31(1) of the Constitution is worded in similar terms as the above provision.
The penal law of rape is intended to protect and enforce these rights – a woman’s right
to choose a spouse and enter into marriage is central to her life, and her dignity and
equality as a human being. The accused violated all these rights.

Court found that even the brothers who aided and enabled the accused should
have been charged with the offence too.