Criminalisation of marital rape

Forced sex within marriage was considered legal in Rwanda until the enactment of the GBV Law.229 This legality was justified by the assumption that consent to sexual intercourse was given by both spouses when entering into marriage, therefore the use of force once the woman refused sexual intercourse was considered as “violence légitime” (literally, legitimate violence). 230 This exemption was supported by other legal provisions in the civil code especially the “obligation de consommer le marriage” meaning the duty to have sexual intercourse within marriage.231

Criminalisation of marital rape is an important declaration of criminal law but it is nominal because of the very low punishment provided. The GBV law provided a penalty of six months to two years’ imprisonment, reduced by the 2012 Penal Code to 2 – 6 months’

224

Wells (2005), p.184.

225

Cherry, J. and Hategekimana, C. (2013), “Ending gender-based violence through grassroots women's empowerment: Lessons from post-1994 Rwanda, Agenda, 27(1),

226

Men found guilty of adultery were liable to a punishment of imprisonment of one to six months whereas it was one month to one year for women. Article 354 of the Penal Code 1977.

227

Articles 20, 24 and 26 of the GBV Law.

228

Article 17.

229

Article 19.

230

Nkubito, A.M. (1995). Droit Pénal Spécial. Kigali, Minijust.

231

imprisonment or a fine.232 This has automatically placed marital rape in the category of “petty offences.”233

Placing marital rape within this category carries a number of negative implications. First, husbands raping their wives may not face preventive detention because it is not permitted for “petty offences.”234 This means that justice authorities may not be able to isolate the accused and prevent further victimisation during the legal process or prevent him from interfering with investigations. Second, attempted marital rape is not punishable because the law does not sanction attempt of “petty offences”.235 Third, the deterrent effect of the provision is limited because of the very low punishment. Moreover, recidivism of petty offences has no legal consequences as opposed to misdemeanours and felonies for which maximum punishments may be doubled in case of recidivism.236

It is clear that the failure to proscribe marital rape as a serious offence creates a hierarchy of victimhood for rape victims in Rwanda. Despite the vociferous arguments put forward in Parliament defending the lower penalties for marital rape (see below), there is no empirical basis for considering such rapes as being less harmful than other forms of rape.237 On the contrary, research conducted in other countries has revealed that marital rape is potentially more traumatic and in some instances it is life-threatening.238 Moreover, it is often accompanied by other forms of physical and mental violence, escalating in some cases into murder.239

This study explored parliamentary debates on the GBV Law to understand its spirit, including why parliament has treated marital rape as a minor wrongdoing. Analysis of the debates revealed that the understanding of heterosexual relationships was dominated by acceptance of male superiority and a tolerance of violence against women that was shared by many members of parliament (MP). This bias was very noticeable in some MPs’

232

The fine is 100,000 to 300,000 Frw (approximately 115 to 345 USD, as of September 2018). Article 199 Penal Code.

233

The law classifies offences into the following categories: felonies, misdemeanours and “petty offences”, according to their gravity. “Petty offences” are those punishable by a main penalty of an imprisonment of less than 6 months or punishable by a fine only (Art 24 Penal code).

234

Article 76 of the Code of Criminal Procedure.

235

Article 30, para. 3 of the Penal Code.

236

Article 79, Penal Code.

237

Russell, D.E.H. (1982), Rape in Marriage, Bloomington, Indiana University Press. p.190.

238

Ibid. p.191 and 198.

239

declarations. As noted in Chapter 1, a number of MPs stated that marital rape did not deserve to be criminalised because permanent sexual consent is given at marriage, and “no negotiations” for sex within marriage should be required. MPs Irabona Liberata and Renzaho Giovani overtly stated that refusal of sexual intercourse within marriage is itself a violation.240 Further arguments against criminalisation of marital rape have been raised by those who rejected criminalisation on the basis of what they considered as the “necessity of family protection.”241 According to MP Nkusi Juvenal, criminalisation of marital rape is an invasion of family privacy because the law was then “entering in the beds of married couples”.242 In addition, it was argued by some MPs that punishing the husband could

have negative effects on the wife and children, and that it was also important to consider family life after the husband’s return.243 A final argument against criminalisation was the

difficulty of finding evidence of marital rape.244

The majority of MPs repudiated categorically most of these ideas, explaining that marital rape was one of the vices that was undermining Rwandan society and that it should not be tolerated.245 They agreed that marital rape should be criminalised but some MPs insisted that the punishment should be lenient in order to limit its effects on the convict’s wife and children.246 This resulted in the adoption of the low penalty set out above.

Part of the problem is that the offence of (non-marital) rape is itself not viewed as a very serious offence under Rwandan law. Apart from child defilement (i.e. “rape of a child”), which since the 2001 Law on Protection of Children has always attracted very severe punishments,247 the punishment for rape is set at five to seven years’ imprisonment.248 This was in fact reduced from ten to fifteen years’ imprisonment under the GBV Law. This is not to suggest that all rapes should be given the most severe of punishments, indeed as we have seen in some situations this may actually be counter-productive, as observed above regarding genocide rape. However, punishments must reflect the gravity of offences as compared to other offences proscribed on the statute books. Where an

240

Rwandan Parliament, Minutes No. 95/PV/CD/UJ/2007, p.15.

241

Ibid.

242

Minutes No. 91/PV/CD/UJ/2007, p.38.

243

Including, MP Renzaho Giovani, Minutes No. 95/PV/CD/UJ/2007, p.16.

244

MPs Kamanda Charles and Mukantaganzwa Pélagie. Ibid. pp.16-17; Minutes No. 91/PV/CD/UJ/2007, p.38.

245

Including MPs Nibishaka Aimable and Yankurije Goretti, Minutes No. 95/PV/CD/UJ/2007, pp 17-19.

246

Including Nyandwi Joseph Desiré, No. 95/PV/CD/UJ/2007, p.14.

247

The penalty is now life imprisonment with special provision. Article 191 Penal Code 2012.

248

offence such as rape has a significantly lower penalty compared with other offences of physical violence, the message sent by the State is that these types of crime are less serious than other forms of violence and are, therefore, less condemnable as a social wrong.