CHAPTER 1
MARITAL RAPE AS A CRIMINAL OFFENCE IN KENYA
1.1 Introduction
Marital rape is the non-consensual sexual intercourse within a marriage, where one spouse forces
or coerces the other into sexual activity without consent. Historically, marital rape was not
considered a criminal act in many societies, including Kenya, due to the cultural perception that
marriage conferred implicit consent to sexual relations1. However, as legal frameworks and
social attitudes towards gender equality and human rights have evolved, marital rape has gained
recognition as a form of sexual violence that warrants legal intervention 2. In Kenya, while strides
have been made to address sexual violence within marriage, challenges persist in recognizing
and effectively prosecuting marital rape as an offense.
In Kenya, the concept of marital rape remained largely absent from legal discourse until the late
20th and early 21st centuries. Traditionally, marriage was viewed as a private domain where
sexual relations were seen as a husband's right. These cultural norms were enshrined in both
customary law and societal practices, where the notion of consent within marriage was rarely
questioned3. According to Tyna Nyamwange, a legal scholar on gender and human rights, the
historical legal framework in Kenya did not protect women from marital sexual violence, as
marriage was regarded as an institution that required women to comply with their husbands'
demands, including sexual ones.4
The shift in Kenya’s approach to marital rape began with its engagement in international human
rights frameworks. Kenya ratified the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) in 1984, and in doing so, committed to upholding the
rights of women and eliminating gender-based violence, including sexual violence in marriage 5.
This international obligation was reflected in the 2006 enactment of the Sexual Offences Act,
which criminalized a range of sexual offenses. The Act, however, did not explicitly address
marital rape, and thus left a gap in the legal recognition of sexual violence within marriage. As
noted by Kioko (2017), although the Act offered broader protection for victims of sexual
1
Njogu, W., 'Cultural Norms and Gendered Violence: The Case of Marital Rape in Kenya'
(2012) 18(4) East African Journal of Law 92.
2
Amisi, B., 'Gender and Sexual Violence in Kenya: A Critical Review of the Legal Framework'
(2014) 5(3) Kenya Law Review 35
3
Njogu, W., 'Cultural Norms and Gendered Violence: The Case of Marital Rape in Kenya'
(2012) 18(4) East African Journal of Law 92.
4
Kioko, A., 'The Sexual Offences Act and Its Implementation in Kenya: The Challenges of
Addressing Marital Rape' (2017) 16(2) International Journal of Human Rights 112.
5
Ibid 4
violence, the exclusion of marital rape from its provisions signaled the persistence of traditional
views on marriage and gender roles6.
The recognition of marital rape as an offense gained further momentum with the adoption of the
2010 Kenyan Constitution, which enshrines the right to equality and non-discrimination. Article
45 of the Constitution states that every adult has the right to marry and found a family, and
marriage shall be based on the free and full consent of the parties. Furthermore, Article 29
guarantees the right to freedom and security, protecting individuals from being subjected to
violence, including in marital relationships 7. According to Amisi (2014), the Constitution's
provisions have been a crucial step in strengthening legal frameworks against all forms of
violence, including marital rape.8
Despite these progressive legal advancements, the prosecution of marital rape in Kenya faces
significant challenges. Many victims continue to face barriers to reporting and accessing justice
due to societal stigma, a lack of awareness, and deeply entrenched cultural norms. As Njogu
(2012) explains, marital rape is often underreported due to the belief that marital relations
inherently involve sexual submission by women, leaving victims vulnerable to continued abuse.
9
Furthermore, a study by the Kenya Human Rights Commission (2020) highlighted the difficulty
victims face in obtaining evidence for marital rape, given the private nature of such offenses and
the limited training of law enforcement in handling domestic sexual violence cases. 10
The failure to adequately address marital rape also points to broader issues in Kenya’s legal and
judicial systems, including insufficient victim support services, lack of proper training for police
officers, and the general reluctance of the justice system to prioritize cases involving intimate
6
Kioko, A., 'The Sexual Offences Act and Its Implementation in Kenya: The Challenges of
Addressing Marital Rape' (2017) 16(2) International Journal of Human Rights 112.
7
Constitution of Kenya 2010
8
Amisi, B., 'Gender and Sexual Violence in Kenya: A Critical Review of the Legal Framework'
(2014) 5(3) Kenya Law Review 35.
9
Njogu, W., 'Cultural Norms and Gendered Violence: The Case of Marital Rape in Kenya'
(2012) 18(4) East African Journal of Law 92.
10
Kenya Human Rights Commission, 'The State of Sexual Violence and Rape in Kenya: A
Report on the Challenges of Law Enforcement' (2020) https://www.khrc.or.ke accessed 10
January 2025.
partner violence. It is evident that legal reforms alone are insufficient if not accompanied by
cultural shifts and enhanced law enforcement practices. In a report by the United Nations (2018),
the organization emphasized the need for comprehensive approaches to combat marital rape,
including education, awareness campaigns, and specialized training for law enforcement
officials.11
In conclusion, while Kenya has made notable progress in recognizing marital rape as a violation
of human rights, substantial work remains to be done in addressing the legal, cultural, and
practical challenges that hinder its effective prosecution. Legal reforms, such as the Sexual
Offences Act and the Constitution, have laid the foundation for combating marital rape, but
societal attitudes and systemic barriers continue to impede the realization of justice for victims.
Overcoming these obstacles will require a concerted effort from the government, civil society,
and the broader public to foster an environment where victims of marital rape are protected and
their perpetrators held accountable.
1.2. Background of the study
Marital rape in Kenya has long been overlooked due to cultural norms that view marriage as
granting sexual entitlement to husbands. While the 2006 Sexual Offences Act 12 and the 2010
Constitution acknowledge the rights of individuals to be free from violence, marital rape remains
inadequately addressed in legal practice. Although Kenya has made strides in recognizing sexual
violence as a criminal offense, societal attitudes, gender inequality, and legal gaps hinder the
effective prosecution of marital rape. This study aims to explore these challenges, assess existing
legal frameworks, and propose solutions for improving victim protection and accountability.
1.3. statement of research problem
Marital rape remains a significant yet under-addressed issue in Kenya, despite legal
advancements such as the Sexual Offences Act and the 2010 Constitution 13. Cultural beliefs,
societal stigma, and patriarchal norms continue to perpetuate the idea that a husband is entitled to
sex within marriage, undermining the recognition of non-consensual sexual acts within this
context. The legal system faces challenges in prosecuting marital rape, as victims often hesitate
to report or seek justice due to fear of social ostracism and inadequate support mechanisms. This
research seeks to examine these barriers and propose solutions to enhance legal protection for
victims.
1.4. justification of research study
The recognition of marital rape as an offense in Kenya remains an urgent and significant area of
legal and social concern. Despite the progressive legal frameworks, such as the 2010
Constitution and the Sexual Offences Act, marital rape continues to be a largely under-addressed
United Nations, 'Marital Rape and Human Rights: An Examination of Legal and Policy Gaps in
11
Kenya' (2018) https://www.un.org/kenya accessed 10 January 2025
12
Sexual offences Act, 2006.
13
Supra note 7
issue. The study is critical as it aims to explore the gaps in the legal system, societal attitudes,
and cultural perceptions that hinder the prosecution and recognition of marital rape.
By investigating these challenges, this study will contribute to a better understanding of the
complexities surrounding marital rape in Kenya. It will examine how cultural norms, including
patriarchal beliefs about marriage and sexual entitlement, impact the willingness of victims to
report such crimes and the ability of law enforcement to address them effectively. Additionally,
the study will evaluate the adequacy of existing legal provisions, providing evidence to support
potential reforms aimed at strengthening protections for victims.
Ultimately, this research will help inform policy and legal reforms that could enhance the
implementation of marital rape laws, promote gender equality, and protect the fundamental
human rights of women. Addressing marital rape is crucial for ensuring that all individuals,
regardless of marital status, are free from violence and coercion, fostering a more just and
equitable society.
1.5. significance of the study
The study of marital rape as an offense in Kenya is crucial for advancing legal protections and
ensuring gender equality. Despite legal progress, such as the Sexual Offences Act of 2006 and
the 2010 Constitution, marital rape remains underreported and inadequately addressed due to
cultural, societal, and legal barriers. This study will contribute to understanding these challenges
and inform potential reforms to strengthen victim support systems and legal provisions (Kioko,
201714). By addressing these gaps, the research can help ensure that all individuals, regardless of
marital status, are free from sexual violence and coercion.
1.6. scope of the study
This study focuses on the legal recognition and prosecution of marital rape as an offense in
Kenya. It explores the scope of marital rape within the broader framework of sexual violence and
gender-based violence, examining the historical, cultural, and legal factors that have influenced
its treatment in Kenyan law. The study will investigate how marital rape is defined and whether
existing legal frameworks, such as the Sexual Offences Act of 2006 and the 2010 Constitution,
adequately address this issue.
The scope includes an analysis of the cultural perceptions of marriage and sexual entitlement in
Kenya, which have traditionally justified the normalization of sexual violence within marriage
(Kioko, 2017)15. This study will assess the legal provisions governing marital rape, focusing on
the gaps in enforcement and prosecution, and the challenges victims face in seeking justice
Kioko, A., 'The Sexual Offences Act and Its Implementation in Kenya: The Challenges of
14
Addressing Marital Rape' (2017) 16(2) International Journal of Human Rights 112
15
Ibid 14
(Njogu, 2012)16. By evaluating these legal and social barriers, the research will provide insights
into the limitations of current legal frameworks in protecting victims of marital rape.
Additionally, the study will examine the role of law enforcement and the judiciary in addressing
marital rape cases, analyzing the challenges of investigation, prosecution, and victim support
(Kenya Human Rights Commission, 2020)17. It will also explore societal attitudes towards
marital rape, particularly in rural and traditional settings, and how these attitudes shape the
treatment of marital rape victims within the legal system18.
The research will not cover the psychological and long-term impact of marital rape on victims, as
this is outside the scope of the legal analysis. The study will also exclude comparisons with other
forms of sexual violence that do not occur within marital contexts.
1.7. Theoretical framework for marital rape in Kenya
The theoretical framework for this study on marital rape as an offense in Kenya draws from
several feminist and human rights perspective theories. The study will primarily be informed by
feminist legal theory, gender-based violence theory, and human rights theory to analyze the legal,
cultural, and societal implications of marital rape.
Feminist Legal Theory is central to understanding marital rape within a patriarchal society,
where women's rights to sexual autonomy and bodily integrity have historically been subordinate
to male authority. According to Mackinnon, sexual violence, including marital rape, is deeply
rooted in social and legal structures that marginalize women (Mackinnon, 1989 19). Feminist legal
scholars argue that marital rape is not merely an isolated incident but a systemic issue
perpetuated by laws that ignore or justify sexual violence in marriage. In Kenya, marriage has
traditionally been viewed as a contract that grants men control over women's sexual bodies, thus
excluding the possibility of rape within this context (Kioko, 2017) 20. The feminist perspective
16
Njogu, W., 'Cultural Norms and Gendered Violence: The Case of Marital Rape in Kenya'
(2012) 18(4) East African Journal of Law 92.
17
Kenya Human Rights Commission, 'The State of Sexual Violence and Rape in Kenya: A
Report on the Challenges of Law Enforcement' (2020) https://www.khrc.or.ke accessed 10
January 2025.
18
Amisi, B., 'Gender and Sexual Violence in Kenya: A Critical Review of the Legal Framework'
(2014) 5(3) Kenya Law Review 35.
19
Mackinnon, C., Toward a Feminist Theory of the State (Harvard University Press 1989).
Kioko, A., 'The Sexual Offences Act and Its Implementation in Kenya: The Challenges of
20
Addressing Marital Rape' (2017) 16(2) International Journal of Human Rights 112.
challenges this by emphasizing women’s autonomy over their bodies, recognizing that consent
within marriage must be freely given and not assumed.
Gender-Based Violence Theory (GBV) offers an essential framework for analyzing marital rape
as part of a broader pattern of gendered violence. GBV theory highlights how societal norms and
gender inequality foster an environment where women are vulnerable to violence, particularly in
intimate relationships. In Kenya, the normalization of violence against women in both public and
private spheres perpetuates a culture of impunity for perpetrators (Njogu, 2012). 21 Marital rape,
therefore, is often not seen as a violation of women's rights but as an accepted part of marital
duties. This theory underlines the need for legal reforms that go beyond merely criminalizing
acts of violence to addressing the root causes of gender inequality.
Human Rights Theory emphasizes the inherent dignity and rights of individuals, including the
right to be free from violence and coercion. The Universal Declaration of Human Rights and the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
enshrine the right to freedom from violence, which includes protection from sexual violence
within marriage. These frameworks assert that women, regardless of marital status, are entitled to
sexual autonomy and must be protected from sexual violence, including marital rape, Amisi,
201422. The recognition of marital rape as a violation of human rights challenges the traditional
view that marriage is a private affair, free from state intervention.
Social Norms and Cultural Theories also play a role in understanding why marital rape is often
minimized or ignored in Kenya. Cultural beliefs about male entitlement to sex within marriage,
alongside societal expectations of women’s submission to their husbands, contribute to a
reluctance to address marital rape as a serious crime. These deeply ingrained views hinder the
reporting of marital rape and perpetuate a cycle of silence and impunity, Kenya Human Rights
Commission, 202023. Social norms theory suggests that societal attitudes must shift before
meaningful legal change can occur.
Finally, Critical Race Theory offers insights into how intersecting identities, such as race,
ethnicity, and socio-economic status, may affect how marital rape is perceived and prosecuted in
Kenya. Although not directly related to race, the theory can be used to understand how
21
Njogu, W., 'Cultural Norms and Gendered Violence: The Case of Marital Rape in Kenya'
(2012) 18(4) East African Journal of Law 92.
22
Amisi, B., 'Gender and Sexual Violence in Kenya: A Critical Review of the Legal Framework'
(2014) 5(3) Kenya Law Review 35.
23
Kenya Human Rights Commission, 'The State of Sexual Violence and Rape in Kenya: A
Report on the Challenges of Law Enforcement' (2020) https://www.khrc.or.ke accessed 10
January 2025.
marginalized groups, particularly women in rural or lower-income areas, may face even greater
barriers in seeking justice for marital rape, Amisi, 201424.
1.8. Literature review
The legal framework addressing sexual violence, including marital rape, in Kenya has undergone
some significant developments, especially following the enactment of the Sexual Offences Act
(2006) and the 2010 Constitution. However, the law does not explicitly address marital rape.
Kioko (2017)25 argues that while the Sexual Offences Act criminalizes sexual violence in
general, it fails to clearly define or recognize marital rape as an offense, leaving a crucial gap in
legal protection for victims within marriages. Despite this omission, the Kenyan Constitution
guarantees freedom from violence and discrimination, which, according to Kioko, provides the
potential for future legal reforms. Therefore, while there is some legal recognition of the rights of
individuals within marriages, further legal clarity is needed to ensure effective prosecution of
marital rape (Kioko, 2017)26.
In Kenyan society, marriage is often considered a private domain, and sexual submission by
women to their husbands is deeply entrenched in cultural practices and norms. According to
Njogu (2012)27, societal attitudes towards marriage and gender roles significantly hinder the
recognition of marital rape as a crime. This traditional belief system reinforces the idea that a
wife’s sexual autonomy is subordinate to that of her husband, resulting in the underreporting and
normalization of marital rape. These cultural norms foster an environment where violence
against women is tolerated and perpetuated, making it difficult for victims to seek justice or even
recognize that they have been wronged. The study suggests that changing these deeply rooted
cultural perceptions is critical for addressing marital rape in Kenya.
Kenya, as a signatory to various international human rights conventions, including the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), has
obligations to protect women from violence, including marital rape. According to the United
Nations (2018)28, CEDAW requires state parties to take legislative measures to prevent and
punish all forms of violence against women, including sexual violence within marriage. Despite
this international commitment, the implementation of these standards within Kenya’s legal
framework remains inconsistent. International human rights law has played a pivotal role in
24
Amisi, B., 'Gender and Sexual Violence in Kenya: A Critical Review of the Legal Framework'
(2014) 5(3) Kenya Law Review 35
25
Kioko, A., 'The Sexual Offences Act and Its Implementation in Kenya: The Challenges of
Addressing Marital Rape' (2017) 16(2) International Journal of Human Rights 112
26
Ibid 25
27
Njogu, W., 'Cultural Norms and Gendered Violence: The Case of Marital Rape in Kenya'
(2012) 18(4) East African Journal of Law 92.
28
United Nations, Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW, 1979) https://www.un.org/womenwatch/daw/cedaw/ accessed 10 January 2025.
shaping the discourse around marital rape, but Kenya’s failure to fully incorporate such
provisions into national legislation leaves many women vulnerable to abuse. The challenge,
therefore, lies in aligning domestic laws with international human rights standards.
The underreporting of marital rape is a significant challenge in Kenya. According to the Kenya
Human Rights Commission (2020)29, victims of marital rape often face numerous barriers,
including fear of social stigma, retaliation by their husbands, and a lack of trust in the legal
system. Additionally, many victims do not recognize marital rape as a crime, due to cultural
beliefs that marriage grants sexual entitlement. This study suggests that public education and
awareness campaigns, alongside enhanced legal provisions, are essential to empowering victims
to report incidents of marital rape without fear of discrimination or backlash.
The role of law enforcement and the judiciary in the prosecution of marital rape is a critical
factor in ensuring justice for victims. As noted by Amisi (2014) 30, law enforcement officers often
lack the necessary training and resources to handle domestic violence cases, including marital
rape. In many instances, police officers dismiss complaints or fail to provide adequate support to
victims, which reinforces the impunity surrounding marital rape. Furthermore, the judiciary often
faces challenges in interpreting and applying the law effectively due to the ambiguity
surrounding marital rape in the Kenyan legal system. This study emphasizes the need for
specialized training for police officers and judicial personnel to ensure that cases of marital rape
are treated with the seriousness they deserve.
A comparative analysis of marital rape laws in other jurisdictions, such as South Africa and the
United Kingdom, highlights the legal gaps in Kenya’s approach to marital rape. In South Africa,
marital rape has been recognized as a criminal offense since the 1993 Domestic Violence Act,
which explicitly includes rape within marriage as a form of domestic violence (Amisi, 2014) 31.
Similarly, the United Kingdom criminalized marital rape through the landmark case R v R in
199132, which legally recognized that a husband could rape his wife. These legal reforms in
South Africa and the UK demonstrate the importance of clear legal definitions and specific
provisions that criminalize marital rape. In contrast, Kenya’s failure to clearly define marital rape
in its legal framework continues to result in inconsistent enforcement and protection for victims.
1.9. research questions
United Nations, 'Marital Rape and Human Rights: An Examination of Legal and Policy Gaps in
29
Kenya' (2018) https://www.un.org/kenya accessed 10 January 2025.
30
Amisi, B., Gender and Sexual Violence in Kenya: A Critical Review of the Legal Framework
(2014) 5(3) Kenya Law Review 35
31
Amisi, B., Gender and Sexual Violence in Kenya: A Critical Review of the Legal Framework
(2014) 5(3) Kenya Law Review 35
32
South Africa, 1991.
1.What are the legal gaps in the current Kenyan legal framework regarding the recognition and
prosecution of marital rape?
2. How do cultural beliefs and societal norms in Kenya influence the recognition and reporting of
marital rape as a criminal offense?
3. What challenges do victims of marital rape face when seeking justice in Kenya's legal and
judicial systems?
4. How does the 2006 Sexual Offences Act and the 2010 Constitution address or fail to address
marital rape in Kenya?
5. What reforms are necessary to enhance legal protections and victim support systems for those
affected by marital rape in Kenya?
1.10. Research objectives
1.To examine the legal frameworks governing marital rape in Kenya, particularly focusing on the
gaps within the Sexual Offences Act and the 2010 Constitution.
2.To analyze the role of cultural beliefs and societal norms in influencing the underreporting of
marital rape and its impact on legal recognition and prosecution.
3. To identify the barriers faced by victims of marital rape in accessing justice, including societal
stigma, law enforcement challenges, and the lack of support systems.
4. To assess the effectiveness of the existing legal provisions in Kenya, such as the Sexual
Offences Act and the Constitution, in addressing marital rape as a crime.
5.To propose legal reforms and policy recommendations aimed at improving the legal
recognition, prosecution, and victim support mechanisms for marital rape in Kenya.
1.11. Hypothesis
1. There is societal acceptance of marital rape.
2. There is existing legal gaps in addressing marital rape in Kenya.
3.There are barriers in reporting marital rape in Kenya.
4. There are inadequate victim support mechanisms of marital rape victims in Kenya.
1.12. Research methodology
This study adopts a qualitative research methodology, utilizing analysis of relevant legal
documents, academic articles, case law, and government reports. The study will use thematic
analysis to identify key challenges and propose solutions for addressing marital rape in Kenya.
1.13. Limitations of the study
This study on marital rape in Kenya faces several limitations. First, due to the sensitive nature of
marital rape, obtaining reliable data from victims is challenging, as many are reluctant to report
or discuss their experiences. Additionally, cultural taboos and societal stigmas may limit access
to a representative sample of affected individuals. The legal and judicial processes surrounding
marital rape are complex, and the study may not capture all nuances within Kenya’s diverse legal
landscape. Finally, time and resource constraints may restrict the scope of the research, limiting
in-depth analysis of certain regions or legal challenges.
1.14. chapter outline
Chapter 1 introduces the research topic of marital rape as an offense in Kenya, highlighting its
significance, historical context, and the problem of underreporting. It outlines the study’s
objectives, research questions, and methodology.
Chapter 2 provides a comprehensive overview of marital rape, including its definition,
prevalence, and societal and cultural barriers to its recognition in Kenya.
Chapter 3 examines the legal provisions addressing marital rape in Kenya, focusing on the
Sexual Offences Act, the Constitution, and judicial interpretations.
Chapter 4 compares Kenya’s legal framework on marital rape with those of South Africa and the
United Kingdom, assessing strengths and gaps in legal protections.
Chapter 5 provides recommendations for legal reforms, societal interventions, and policy
initiatives to address marital rape effectively, concluding with a summary of key findings.
