Wednesday, November 28, 2012

TILL RAPE DO US PART- A case for the criminalization of marital/spousal rape

In the past three days I have had cause to be scared for Nigerian women. I had long online debates with at least 30 young Nigerian (married and unmarried) men from different professions: lawyers, engineers, civil servants, teachers on the issue of marital rape. It has taken me a while to get over the shock of some of what I heard to write this article debunking the popular myths surrounding marital rape.

One does not need to have experienced rape to understand the seriousness of rape as a crime. Its highly intrusive, sometimes violent nature makes it capable of deep, lasting damage- more so than many other violent crimes. Often, the perpetrator of rape, (some put the frequency at as high as 90% of the time) is known to the victim- a neighbor, friend, uncle, cousin, husband, teacher, pastor, ex-partner. Rape takes on a new dimension when the victim is raped by someone close- then it even becomes harder to report. [Please note that while rape and sexual violence also happens to men, the focus of this article is marital rape as perpetrated by men]

In the case of marriage, Nigeria law and society has left nowhere for a victim of rape to turn. Our law, by its sad silence implies that a man, cannot commit the offence of rape with his wife. Even worse, many men in our society seem to reinforce this sorry state of the law by their statements and actions. A man said to me a few days ago: Why would a woman whose dowry I paid refuse to give me sex when I demand it?

Section 282 of the Penal Code, governing the North of Nigeria and Section 357 of the Criminal Code, governing the South, both exempt a husband from the definition of the offence of rape. This position of the law is based on the legal theory as expressed by English Judge Sir Matthew Hale in 1680 in The History of the Pleas of the Crown that by their mutual matrimonial consent and contract the wife hath given herself in this kind unto the husband which she cannot retract.” In other words, a wife has by marriage sold herself into sexual slavery and does not have the right to say no.

I can understand how an English judge in the 1600’s would make this statement. But I cannot understand how an educated man in 2012 would repeat and justify it.

Marriage is a relationship of trust- perhaps the deepest level of the expression of trust known to humans. Sexual violence by a person to whom such trust has been given is probably the highest level of breach of that trust. This can be hard to report or otherwise handle. Whereas rape by a stranger may happen once, the victim of marital rape is likely to fear that this will keep happening. I do not need to explain how the anticipation of sexual violence from one with whom you share a bed can be traumatic.

One reason for a husband’s legal and social immunity from rape is our cultural attitude toward women in general. A man is viewed as master over a woman- a position reinforced by culture, religion and even law. I have never been able to get over the shock of Section 55 (1) (d) of the Penal Code which states that “nothing is an offence which does not amount to the infliction of grievous hurt upon any person and which is done by a husband for the purpose of correcting his wife, such husband or wife being subject to any native law or custom in which such correction is recognized as lawful”. This section places women in the same category as children receiving corporal punishment.

There are two grave implications of this section. One, that it permits the husband to beat his wife or otherwise “correct” her as long as he does not injure her. Two, it upholds any native custom that allows such beating or other violence against women. Thus a man, if he considers rape to be a corrective tool for her say, denying him sex may lawfully do so under the law.

A lot of the problem surrounding marital rape also comes from a skewed understanding of what rape and marriage is. I will attempt to make comments on some of these misconceptions as gathered from conversations I have had with Nigerian men in the past few days

1.       Marriage entitles me to sex. It is my right to demand sex from my wife and as part of her duties she must make the sacrifice and satisfy me when and how I want.
The basis of this unfortunate myth seems to be the idea that a man is superior to a woman. It becomes easier to justify this when a man believes that a woman is a lesser partner in a marital relationship. A man who sees his wife as an equal partner and friend will not turn violent when his wife is tired or otherwise unable to engage in sexual intercourse at a particular time. A loving, caring partner will likely not need to demand sex in the first place.

2.       Forcing my wife to have sex is not rape. I am only taking what is lawfully mine.
Rape is any non-consensual sexual intercourse. I would go ahead to state that I think that it should include not just non-consensual vaginal penetration as the law currently provides but non-consensual oral and anal sex and the penetration of the vagina or anal cavity using objects including but not limited to hands or fingers. Rape is not about sex or love. It is about power, domination and violence. Just like consensual sex can be an expression of love in a marriage, rape is an expression of violent domination. The rapist is not just “taking” sex. Such a person is inflicting both physical and psychological harm on the victim. Rape has nothing to do with pleasure or enjoyment. It is a crime. Even where there is no struggle because a victim already feels overpowered mentally or physically, it is still rape. What makes it a rape is the forced and/or non-consensual nature of the sex.

3.      "Marital rape" is a Eurocentric or Western Idea. It is unAfrican to talk of Marital Rape.
Marital rape should be seen as what it is. Rape. Sexual violence. It is not African. It is barbaric and does not belong in any human culture. Even if it is condoned by some of our cultures, it is our place to end those cultures. To use the legal cliché , any culture that is “repugnant to natural justice, equity and good conscience” should be discarded in favor of one that shows respect and dignity to all persons regardless of gender, circumstances of birth, or other differences. We must remember also that culture is fluid. It is not immutable but is a reflection of the ideals of a people over time. Our culture must reflect sane ideals, not practices that make slaves of women.

Sex in marriage should be enjoyed by both parties. It should not be a chore for one party. Healthy sexual relations should be where both parties provide intimacy and pleasure without discomfort, fear or coercion. Where a wife is forced against her will to engage in sex or certain sexual acts, the law should be able to protect her. No contract, marital or otherwise should allow one person to inflict violence on another.

Our legislature must step up and expunge embarrassing provisions in our laws that allow men to legally inflict violence on their wives. Our law must protect vulnerable groups (and minorities) instead of legalizing their oppression. 

I must end by saying that I am a Nigerian man. I believe in the equality of man and woman. I believe in the right of a woman to be in control of her own body. I believe in the right of a woman to say no when she does not want sex. I believe in the right of a woman to withdraw the consent she has given at anytime. And I believe there are many other men, like me.


  1. Thank you Elnathan. been following your FB thread on this with interest, and I, like you was horrified at some of the things I heard. Articles like this are one more lamp on the path to enlightenment and ending ignorance.
    Thank you again.

  2. Thank you for writing this. I have long given up the hope that society will look out for women. I can only PRAY that there are many more Nigerian men like you; and that someday before I have daughters, someone changes these laws and puts in place laws that would protect my daughters. Or maybe I should just take up the mantle.

  3. Well done. Very well articulated piece. However, I'd like to see how our lawmakers handle this. I dare say that not a few of them still live in the 17th century mentally, and so how do you tell a man like that that his wife is not property to be treated just as he pleases? It'll take a lot of consistent re- orientation to purge their outlandish reasonings. That said, my primary concern isn't even the law as it is, being that we do have some radical judges/ magistrates who would be willing to go the entire hog and call out abusive spouses/rapists. Hopefully, that should give rise to judge made laws especially at a time when our laws are being revisited. My worry is the fact that victims of spousal abuse do not speak out or seek help because of what people/society will say. So even if the laws are updated, who is going to avail him/herself of the law? People, especially women need to be made to understand that you are never the cause of "your rape" no matter what. True that some of the incidences of spousal rape may lead to divorce when reported, but people need to know that it's better to be divorced and alive to rebuild your life and self esteem, than to love in depression and persistent emotional, psychological and physical abuse. Society needs to stop looking down on rape victims and instead offer them support. Only then will victims be able to speak out and stem further abuse.

  4. On behalf of the millions of women in Nigeria (and all over the world) who have no voice and suffer in silence, thanks for writing this brilliant piece.

  5. This is so impresive and insighful. Thanks for posting it.

  6. Elnathan - Thank you.

    10 years ago, when I was in Law School, I remember having a spirited discussion with male colleagues about this same topic. I remember giving most of your points and how upset I was that it was 2002 and young learned men (who were quite brilliant)could not make the connection. I remember asking if women were property like furniture. What I found so frustrating was that two of them were heavily invested in the idea that a man cannot rape his wife even outside the criminality of the act.

    I have little hope for the legislature. Case law and precedence maybe but we know how tedious our legal system is. Surely, men at the top have self-serving interests and most women only promote patriarchy as soon as they are allowed inside the circle. So why change the law if it does not benefit them.

    I hate to say this but we have a rape culture in Nigeria.

  7. This is a timely piece for the campaign on #16Days of violence against women. Thanks for sharing. Two days ago on a radio programme I was speaking on, I listened as an articulate and well educated young man argued the point that "some" women asked to be raped. To say I am still in shock is an under statement.

  8. u no get we are borderd.who wants to rape his wife when he can easily buy another woman 2000 for a whole nite?abeg talk about boko haram,nepa,bad roads,increasing prostitution etc or just shot up.bizzy body

  9. Elnathan John...I know you are a GOOD man and I also know GOOD men like you.!! You are someone that I would totally be highly honored to meet. Until then, I can strongly say that I hear your voice and it speaks to the deepest part of my What a man.

  10. thank you for this article

  11. You said it the way it is. Many of us men are animal. I am not unaware that women faces such problem,to many women their matrimonial home is hell.

    I must end by saying that I am a Nigerian man. I believe in the equality of man and woman. I believe in the right of a woman to be in control of her own body. I believe in the right of a woman to say no when she does not want sex. I believe in the right of a woman to withdraw the consent she has given at anytime. And I believe there are many other men, like me
    . Yes I go with you.

  12. If the law cannot protect us as women,who will? Its disheartening to know a man can do ANYTHING he wants with a woman just because they are 'MARRIED'. Its truly sad. I just hope there are more good men like you and my husband who are not selfish, who can respect the dignity of womanhood and just understand when we can't live up to bed!! Like you said,sex should not be seen as a chore. When it gets to that,then the relationship is in BIG TROUBLE!!
    God help us to build homes and families that will bring glory to His name.
    Thanks for this article Elnathan!!!


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