UNIVERSITY OF NAIROBI

SCHOOL OF LAW

A GAP IN CRIMINAL LAWS: LEGAL ASPECTS OF MARITAL RAPE IN KENYA

BY:

REG:

SUPERVISOR:

RESEARCH PAPER SUBMITTED IN PARTIAL FULFILLMENT OF THE BACHELOR

OF LAW (LL. B) COURSE (GPR 421)

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DATE OF SUBMISSION:

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LIST OF ABBREVIATIONS

CEDAW Convention on the Elimination of All Forms of Discrimination against Women

DEVAW Declaration on the Elimination of Violence against Women

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

UDHR Universal Declaration of Human Rights

UN United Nations

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ABSTRACT

This paper discusses and analyses the issue of rape in marriage. The scope of the study covers

marital rape in relation to the Kenyan context, and it has been compared with other jurisdictions

such as Ghana which is also facing the same problem whereby marital rape has been neglected

but is advancing steps to curb its prevalence. It has further been compared with the American

jurisdiction and the United Kingdom where some states have criminalised marital rape cognizant

by law.

The main objective of the dissertation is to analyse the limits of conjugal rights granted to a wife

and husband. In addition to this, to discuss the rights, i.e. the right of equality, freedom and

inherent dignity that a woman is entitled to. Lastly, to analyse avenues of protecting women who

are abused in their marriage.

The justification of the study is that there is need for guidance on the constitutionality and

legality of criminalising spousal rape and clarification on whether this practice and manifestation

are protected under the freedom from discrimination and right to equality. This is because many

women have suffered simply because the silence in the law creates legal impunity for men who

sexually assault or rape the women who are their wives or intimate partners. This, therefore,

legitimises this particular form of violence against women. This is a human rights problem that

cries for redress, both legally and socially. Furthermore, an examination on the state's failure to

criminalise sexual assaults breaches the due diligence standard and fails to comply with the

international human rights norms. This evidently outlines that there is a significant gap in the

laws around the world that ensure legal impunity for men who sexually abuse their wives; thus, it

4
indicates the global scale of the human rights law reform still to be conducted in this field. This

research project is, therefore, essential to provide guidance and elaborate on international law to

women in certain jurisdictions where marital rape is an unknown crime.

The conclusion focuses on the criminalisation of rape in marriage and the recommendations

which entail some of the responses that should be adopted in order to curb the marital vice.

These include both legal and non-legal responses.

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TABLE OF CONTENTS

ABSTRACT....................................................................................................................................4

CHAPTER ONE..............................................................................................................................7

1.1 INTRODUCTION AND BACKGROUND..............................................................................7

1.2 STATEMENT OF THE PROBLEM..........................................................................................9

1.3 JUSTIFICATION OF STUDY................................................................................................10

1.4 STATEMENT OF OBJECTIVES............................................................................................10

1.5 RESEARCH QUESTIONS.....................................................................................................10

1.6 THEORETICAL FRAMEWORK...........................................................................................11

1.6.1 THE HUMAN RIGHTS THEORY...................................................................................11

1.6.2 UTILITARIANISM.........................................................................................................13

1.6.3 CLASSIC RAPE THEORY..............................................................................................16

1.7 Literature Review....................................................................................................................18

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CHAPTER ONE

1.1 INTRODUCTION AND BACKGROUND

‘If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by

the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to

forget and forgive’.1

For quite some time, assault inside marriage has not esteemed an offence. This may be originated

from the patriarchal way of society inside of the African connection as well as worldwide. It

further goes that the praise of the male as against the female sex assumes a major part in

belittling the female sex. This position has been seen to penetrate through every one of the circles

of life.2

Marital rape is unwanted sexual penetration (vaginal, anal or oral) or contact with the genitals

that is the result of actual or threatened physical force or when the spouse is unable to give

affirmative consent.3 More specifically, marital rape is a regime that involves a lack of consent in

the institution of marriage. The Sexual Offences Act defines rape as a situation when a person

intentionally commits an act which causes penetration with his or her genital organs without

consent from the other person, or the consent is obtained by force or by means of threats or

intimidation of any kind.4

1 State v Oliver, 70 NC 60, 62 (1874).

2 Karin van Marle, If God Is Male Then the Male Is God - PULP FICTIONS No.3 (Karin van Marle ed,
Pretoria University Law Press 2007).
3 Raquel Bergen, Wife Rape: Understanding the Response of Survivors and Service Providers (SAGE
Publications, Inc 2014).

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Section 43(5) of the Sexual Offences Act, however, states that it is not an offence to coerce

someone into a sexual act by using force or threat of harm if you are legally married to that

person. This provision, therefore, strips victims of the protection from the state against violence

and forced sex, with respect to one's husband.4Despite the Kenyan position, other countries have

marital rape provisions. For example, the courts have evinced marital rape as highlighted in the

case of Regina v R, which charged a husband with marital rape.5

There are principally three types of marital rape. These are; force only rapes, battering rapes and

obsessive rape.6 Spousal rape remains a somewhat slippery idea more so in the African Culture.

This stems from the fact that it is for the most part seen that once two people of 'eligible age'

meet up into the union that then structures the establishment of marriage, then consent to sex is

considered to have been given and at all times. This builds up the thought of marital rights. The

marital privileges of a woman have been undermined on the grounds that it is expected by virtue

of getting married she consequently loses a say on her matrimonial rights. As an outcome

emerging thereof spousal assault/conjugal assault has remained fairly alien for those in the

African society and in this specific case Kenya. It is unclear with reference to why it is not

viewed as culpable wrongdoing in Kenya while in different jurisdictions, for instance, the United

States of America and South Africa the act is criminalised.

A report conducted by the UN outlined that 127 countries exempt marital rape from criminal

sanctions.7 Sexual assault perpetrated by a spouse is entirely legal while sexual assault, in

4 The Sexual Offences Act No. 3 of 2006, s. 43(5).

5 R v R [1991] UKHL 12 (23 October 1991).
6 Gloria Cowan, ‘Beliefs about the Causes of Four Types of Rape’ (2000) 42 Sex Roles 807
<https://link.springer.com/article/10.1023/A:1007042215614> accessed 10 November 2020.
7 ‘UN Women Executive Director’s Statement for the International Day for the Elimination of Violence
against Women, 25 November 2019 | UN Women – Headquarters’ (UN Women, 2019)

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general, is criminalised in these countries. This is an issue that needs to be addressed because as

a society, we can't ignore certain crimes because they are deemed less crimes. Human rights

violations are now well recognised; however, this specific form of gender violence has managed

to escape out of both criminal sanctions and human rights approbation in almost one-third of the

world's nations. Research conducted indicates that out of the majority of the women who are

faced with violence, it is usually perpetrated by men known to the victims.8

However, in some jurisdiction’s steps have been taken to curb marital rape. Some states have

limited the exemption to include married partners who live apart and, in a few cases, married

partners who have begun dissolution proceedings. Some have taken a step further by including

cohabitants and formerly married persons. In a nutshell, rape in marriage is an issue that is of

great importance that needs to be dealt with.9

1.2 STATEMENT OF THE PROBLEM

Spouses have conjugal rights in marriage, and hence there is the assumption that there is implied

consent for indulging in sex at any time. However, marital rape, just like a stranger rape is an

affront to the bodily integrity of the victim. The marital rape exemption in Kenya, therefore

provides a conducive environment for this form of violation. This exemption clearly goes against

the spirit of the Constitution and other relevant international conventions. It pervades and

undermines several fundamental human rights such as the right to be free from cruel and

<https://www.unwomen.org/en/news/stories/2019/11/statement-ed-phumzile-day-for-the-elimination-of-
violence-against-women> accessed 10 November 2020.
8 Melanie Randall and Vasanthi Venkatesh, ‘The Right to No: The Crime of Marital Rape, Women’s
Human Rights, and International Law’ (2015) 41 Brooklyn Journal of International Law
<https://brooklynworks.brooklaw.edu/bjil/vol41/iss1/3> accessed 10 November 2020.
9 Ibid.

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inhuman treatment, the right to life and the right free from any form of discrimination.

1.3 JUSTIFICATION OF STUDY

This study is justified on the basis that although proper retributive provisions have been put in

place to reprimand sexual offenders, section 43(5) of the Sexual Offences Act strips spouses

from seeking redress on matters concerning marital rape. 10This section is a clear contravention of

Article 27 of the Constitution which states that every person is equal before the law and has the

right to equal protection and equal benefit of the law. 11 It also contravenes international

conventions that Kenya is a party to such as Article 2 of the CEDAW and Article 3 of the

ACHPR.

There is a need for guidance on the constitutionality and legality of criminalising spousal rape

and clarification on whether this practice and manifestation are protected under the freedom from

discrimination and the right to equality. This is because many women have suffered simply

because the silence in the law creates legal impunity for men who sexually assault or rape the

women who are their wives or intimate partners. This, therefore, legitimises this particular form

of violence against women. This is a human rights problem that cries for redress, both legally

and socially. Furthermore, an examination on the state's failure to criminalise sexual assaults

breaches the due diligence standard and fails to comply with the international human rights

10 The Sexual Offences Act No. 3 of 2006, S. 45(3).

11 Constitution of Kenya 2010, Art. 27.

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norms. This evidently outlines that there is a significant gap in the laws around the world that

ensure legal impunity for men who sexually abuse their wives. Thus it indicates the global scale

of the human rights law reform still to be conducted in this field.

1.4 STATEMENT OF OBJECTIVES

1. To scrutinise the legal and social effect of section 43(5) of the Sexual Offences Act.

2. To discuss the need for the creation of a criminal offence of Marital Rape in the Sexual

Offences Act.

3. To discuss the nature of the gap between the definition of rape in the laws of Kenya

compared to international conventions and other jurisdictions.

1.5 RESEARCH QUESTIONS

1. What is the legal and social effect of section 43(5) of the Sexual Offences Act?

2. What is the need for the creation of a criminal offence of Marital Rape in the Sexual

Offences Act?

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3. What the nature of the gap between the definition of rape in the laws of Kenya compared

to international conventions and other jurisdictions?

1.6 THEORETICAL FRAMEWORK

This paper is premised on three major theories touching on the rights and liberties of individuals

in a marital rape case analysis. These are the human rights theory, the utilitarian theory, and the

classic rape theory to put into perspective the concept of marital rape and the illegitimacy

surrounding its‘exception.

1.6.1 THE HUMAN RIGHTS THEORY

This theory calls for elevating human beings to a higher level, that of humanity, which is the

pinnacle of all being. This is quite evident in the provisions of the Universal Declaration of

Human Rights that all human beings are born free and equal in dignity and rights and should act

towards one another in a spirit of brotherhood.12 These human rights are not only inherent to all

human beings but also indivisible, and are widely considered to be of universal application, if

the words of Jack Donnely are anything to go by, Notwithstanding disputes over their

conceptualisation and application, human rights are among the few utopian ideals, and there is a

remarkable degree of consensus by governments on the principle at least that certain rights be

protected under the law.13 The human rights approach abhors such actions as categorising marital

12 The Universal Declaration of Human Rights, 1948, Art. 1.

13 Jack Donnelly, ‘Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of
Human Rights’ (1982) 76 American Political Science Review 303 </core/journals/american-political-
science-review/article/human-rights-and-human-dignity-an-analytic-critique-of-nonwestern-conceptions-
of-human-rights/D09A32D45255C66877DEE452FA02F3E4> accessed 31 August 2020.

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rape as an exception to cases of rape. John Locke argues that in a natural state, everyone had a

natural right to defend his life, health, liberty or possession. This school of thought is the basis

the American founding fathers coined their declaration of independence that All men are created

equal; they are endowed by their creator with certain unalienable rights among which include

the right to life, liberty and pursuit of happiness.14

John Janzekovich further argues that the human rights approach must take into account the

different cultures of mankind. However, he states that ‗an appeal on humankind is said to be an

appeal on the values of freedom and equality among humankind.'

The Human rights approach, therefore, according to John Janzekovich, is based on the

assumption that human beings have a unique and special sense of being, which translates directly

into notions of worth and value.' However, he goes on to state that even though these rights are

important, they are not immutable citing a situation of a murderer being incarcerated or executed

for his actions. This argument, therefore, justifies the use of force in protection of one's self.

Margaret MacDonald proposes that, safeguard and restore, where necessary, the Rights of Man,

those ultimate points at which the authority and social differences vanish, leaving the solitary

individual with his essential human nature, according to one political theory, or a mere social

fiction, according to another. Hart further proposes that a theory of rights can be derived from

the minimum content of natural law.15

14 Declaration of Independence 2 (U.S. 1776).

15 Hart H.L.A., The Concept of Law (Clarendon Press 1961), p. 189.

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1.6.2 UTILITARIANISM

Robin Barrow summarised the utilitarian approach as the assignment of moral goodness or

rightness to only one kind of consequence-effects on overall well-being. Safety, security and

protection of human life are one of the main responsibilities of any government under the Social

Contract theory. Therefore the overall well-being of each individual person places a legal duty

upon any government to protect and promote these rights.16

Barrow further argued that utilitarianism called for maximum utility for affected persons. This

was further stated by Bernard Arthur Owen as the fundamental idea of utilitarianism where he

said that “The fundamental rightness of our actions is determined by the effect these have on the

well being of others and us”17. This, therefore, means that in case of any action that tends to

interfere with the well being of any person, his her consent must be sought.

Richard Frey proposes a similar argument. He goes ahead to state that the utilitarian approach is

premised on five components.18 He stated that, Firstly, there is the consequence component. This

is where the rightness or wrongness of an act is tied to the production of bad and good

consequences. Some utilitarians say that there is something inherently good and bad in particular

acts because of the sorts of outcomes these acts produce. Others argue that acts are not

themselves good or bad, but that outcomes will primarily determine goodness.

16 Robin Barrow, Utilitarianism: A Contemporary Statement (Routledge Taylor & Francis Group 1991), p.
39.
17 Arthur Owen B.W, Morality: An Introduction to Ethics (Harper Collins Publishers Inc 1972).
18 Raymond Frey, Utility and Rights (University of Minnesota press 1984), p.4 .

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The second component stated by Frey is the value component. He defines it as where the

goodness and badness of consequences is evaluated by means of some standard intrinsic value of

goodness. In this respect, Frey stated that where the action is taken to prevent a wrong or evil

from happening, the action is deemed as a good. Similarly, where the action itself is used in the

wrong manner, the action is deemed wrong or evil.

The range component, minimising principle and the welfare element of utilitarianism, are the

third, fourth and fifth components stated by Frey respectively. He provides that the range

component is where the consequence of the act affects everyone and not just the agent in the

determination of moral rightness. ‘This applies adequately in the case of an attacked person who

uses excessive force to repel an attack or rather retaliates at the time when the threat ceases to be

a threat. In the long run, regardless of there being a good intent, the use of the excessive force

causes unnecessary injury to the attacker, thereby making the action immoral and unjustifiable.

Jeremy Bentham, a proponent of the utilitarian approach, stated the fundamental axiom in terms

of the greatest happiness of the greatest number. 19 This theory serves to justify the requirement of

consent in sexual intercourse in marriage.

19 Jeremy Bentham, The Principles of Morals and Legislation, Chap. XVII, Section IV (Prometheus Books
1988), 5.

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1.6.3 CLASSIC RAPE THEORY

Until four decades ago, rape theories and researches across board ignored rape in marriage20

because sexuality in marriage has been shrouded in great secrecy though its abuse abounds. 21 In

addressing the concept of marital rape, this research adopts the classic rape theory propounded

by Williams.22 It examined and attempted to explain why spouses will not label any form of

sexual abuse in marriage as rape or accede to its criminalisation. Classic rape is rape by an

assailant unknown to the victim. It is synonymous with: aggravated rape 23, real rape24 and blitz

rape According to Burt & Alvin classic rape is stereotyped (an over-generalised impression of

what characterises something especially one that does not allow for individuality or variation) by

the general public, police and judges.25

Classic rape circumstances and characteristics are that the victim must be a total stranger to the

perpetrator (not ever acquainted); the victim should not: have led the rapist on in any way (a

sexy, sexual situation, way of dressing); have been drunk in his presence or company. The victim

should have: gotten pregnant after the rape; been infected with sexually transmitted venereal

diseases; been abducted and raped. There must be evidence of: physical injuries that have been

sustained; weapon use; enough active resistance; the degree of force used- choked, tied, locked

up, gagged, drugged, blindfolded. Some of the indications must lead to hospitalisation- beaten,
20 Mildred Daley Pagelow, ‘Marital Rape’, Handbook of Family Violence (Springer US 1988)
<http://link.springer.com/10.1007/978-1-4757-5360-8_9> accessed 11 November 2020.
21 Nanette J Davis, ‘Book Reviews : Against Our Will: Men, Women, and Rape, by Susan Brownmiller.
Pp. 471. New York, Simon and Schuster, 1975. $10.95. The Charge Is Rape, by Gerald As-Tor. Pp. 215.
Chicago, Playboy Press, 1974. $7.95’ (1977) 23 Crime & Delinquency 455
<http://journals.sagepub.com/doi/10.1177/001112877702300415> accessed 11 November 2020; David
Cheal, Families in Today’s World: A Comparative Approach (Routledge Taylor & Francis Group 2008)
<https://www.taylorfrancis.com/books/9780203007211> accessed 11 November 2020.
22 Linda S Williams, ‘The Classic Rape: When Do Victims Report?’ (1984) 31 Social Problems 459.
23 Susan Estrich, Real Rape (Harvard University Press 1987), p. 4.
24 Martha R Burt and Rochelle Semmel Albin, ‘Rape Myths, Rape Definitions, and Probability of
Conviction’ (1981) 11 Journal of Applied Social Psychology 212
<https://onlinelibrary.wiley.com/doi/full/10.1111/j.1559-1816.1981.tb00739.x> accessed 11 November
2020.
25 ibid.

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extrinsic violence; a sudden attack; multiple assailants- gang rape. These serve as a stereotype of

rape generally and known to attract great active sympathy.26

Ultimately, if rape does not have features of classic rape, it is not rape. Yet, contrary to prevailing

stereotypes, most victims of rape are not raped by total strangers. The inability to accept rape as

rape when it is not classic may largely be attributable to the conception of what fits to be rape

because legal definitions across the board have been ignored.27

Classic rape characteristics are usually mind boggling and widely attract sympathy from society

to the judiciary for immediate sanctions. The assumption is that victims also share these notions

because they also belong to the general public 45; thus, the conventional wisdom pertaining to

marital rape.28

Additionally, stereotyped classic rape does not feature most of the characteristics of marital rape.

For example, a husband is privy to his wife’s nakedness unconditionally, which will certainly

lead him on to force sex on his non-consenting wife. For these reasons, marital rape is less likely

to attract any sympathy and action at all because it is a far departure from the socio-cultural

schema of classic rape. The thin line between rape and consented sex is consent which only

couples can define in relation to their relationship.

Ghana is an example of a country that is not at all immune to the classic rape stereotype. Cusack

confirmed the classic rape theory featuring intimates in nationwide survey regard to rape. The

26 ibid; KATHLEEN C BASILE, ‘Rape by Acquiescence’ (1999) 5 Violence Against Women 1036
<http://journals.sagepub.com/doi/10.1177/1077801299005009004> accessed 11 November 2020.
27 Cheal (n 21).
28 Williams (n 22).

17
female was perceived to be unmarried. Rape was most often viewed as an offence committed by

strangers. In discussing issues centred on sexual violence, rape to the respondents was

acquaintance rape. The husband is nowhere labelled a rapist. It will even be a taboo leading to

estrangement and divorce.29

1.7 LITERATURE REVIEW

This research does not present itself as a pioneer in the controversy and the issues involving the

subject of marital rape, and neither does it set to be the first to extensively study the concept of

marital rape. Indeed, there are numerous distinguished scholars and researchers who have

undertaken and written extensively on this subject. Similarly, there are various local and

international instruments that discourage violation of women rights, especially the issue of

marital rape.

Crichton states that intimate partner violence includes multiple violations of sexual and

reproductive rights. This leads to devastating impacts on the well-being of the individual affected

and their health. Violence against women includes various practices. 30 These are sexual and

psychological violence by intimate partners, marital rape, forced sex work and female genital

mutilation (FGM). In the Kenyan context, it has been noted that the government does not provide

legal aid either does it support survivors of gender violence. This is despite the fact that statistics

clearly indicate the rate at which the women are affected is prevalent. As a result, the NGOs and

other private organisations step in. It is clear that women ‘s rights to equality, freedom and

29 BASILE (n 26).
30 ‘Painful Tradeoffs: Intimate-Partner Violence and Sexual and Reproductive Health Rights in Kenya -
GSDRC’ <https://gsdrc.org/document-library/painful-tradeoffs-intimate-partner-violence-and-sexual-and-
reproductive-health-rights-in-kenya/> accessed 11 November 2020.

18
human dignity are being undermined. This paper shall, therefore, seek to fill this gap.

A study by FIDA demonstrated that 74.5% of women had been abused in their homes. The

women interviewed lamented that their husbands abused them and regarded them as property

and ignored any notions of consent to sexual activity. 31 It was observed that marital rape has

several effects and is deemed to be the highest risk of contracting STIs and HIV infection. It is

miserable that marital assault is a long process, and most times, the victim can't recall when the

perpetrator committed the act. As a result, when such incidents are reported to the police, they

regard them as domestic matters which do not warrant mediation by the criminal equity

framework. This is due to the inefficient justice system and lack of specialists who could provide

vital confirmation for conviction. Violence against women constitutes an infringement of the

rights and fundamental freedom of women and invalidates their enjoyment of those rights and

freedom, and consequently is an obstruction to the accomplishment of equity, development and

peace.32

The United Nations has recognised that violence against women invalidates women's rights to

practice their fundamental freedoms. On the other hand, the CEDAW Committee has specifically

identified these rights as being hindered or entirely invalidated by gender violence. These rights

are protected in the core human rights treaties that have been ratified by the majority of the

countries. These treaties impose obligations on states to regulate the actions of private actors.

The core treaties protecting human rights include the ICCPR, ICESCR, CEDAW and the

Convention against Torture. Moreover, these bodies, such as CEDAW have interpreted these

rights to include the prohibition of marital rape. Though by ratifying the conventions, states are

31 Carol E Jordan, ‘Violence against Women in Kentucky’ [2014] Violence against Women in Kentucky.
32 Christine Wanjiru Kung’u, ‘Criminalization of Marital Rape in Kenya’ [2011] University of Toronto
Publishers 2.

19
carefully accepting the jurisdiction of treaty bodies to monitor state compliance and to provide

substantive content for the rights.33

Indeed, several International Conventions acknowledge the importance of human rights. These

include; the Universal Declaration of Human Rights (UDHR), The International Covenant on

Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural

Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination

Against Women (CEDAW).

The Constitution of Kenya in article 27 stipulates that every person is equal before the law and

has the right to equal protection and equal benefit from the law. It further states in article 27(3)

that women and men have the right to equal treatment, including the right to equal opportunities

in political, economic, cultural and social spheres. Further, article 28 highlights that every person

has inherent dignity and the right to have that dignity respected and protected. In article 45, it

outlines that parties to a marriage are entitled to equal rights at the time of marriage, during the

marriage and at the dissolution of the marriage. This is a clear indication that the Kenyan laws

are going silent on the issue of rape within marriage. It is an issue that needs to be addressed

because provisions from the Constitution imply that men and women have equal rights.

Therefore, the right to protection from rape within marriage should be inclusive of these rights.

This is in an attempt to eliminate discrimination against women.34

Despite the presence of the entire local and the international instruments which outlaw marital

rape as being an outright violation of women rights, there still exists a gap to the effect that

discrimination among women in Kenya on the basis of their sexuality is evident. This is despite

33 Declaration on the Elimination of Violence against Women.

34 Constitution of Kenya 2010, Articles 27 and 45.

20
various other jurisdictions outlawing rape within marriage as a crime. With the backing of our

Constitution, we should be able to outlaw marital rape through a critical re-evaluation of our

statutes to incorporate the same. This is by viewing a woman as equal to a man hence catering

for her rights that are inherently hers and further by acknowledging her conjugal rights and by

respecting them.35

1.8 RESEARCH DESIGN & METHODOLOGY

Primary research was based on Statutes, International Conventions, Kenyan Hansard, Case law

and a comparative case study of South Africa

Secondary research was derived from books, journals, internet sources, journal articles and

newspaper articles.

1.9 LIMITATIONS

35 Ibid, Art. 27(4).

21
Lack of Kenyan precedent on marital rape: This is due to the fact that marital rape is not

considered a criminal offence in Kenya. This, therefore, limits my research to the precedence of

other jurisdictions.

1.10 CHAPTER BREAKDOWN

Chapter one provides an introduction to the study, the statement of the problem, the literature

review, the objectives and questions, the hypothesis, the conceptual framework and the design

methodology of the study.

Chapter two will locate the marital rape debate by discussing theories that currently support and

uphold the marital rape exemption as well as criticisms of those theories.

Chapter three looks into the necessity of criminal law in addressing the issue of marital rape.

Chapter four explores the limitations of criminalising marital rape, considering the Kenyan

context.

Chapter 5 makes the conclusions of the study and comes up with recommendations.

22
BIBLIOGRAPHY

BOOKS AND SECONDARY SOURCES

23
B.W AO, Morality: An Introduction to Ethics (Harper Collins Publishers Inc 1972)

Barrow R, Utilitarianism: A Contemporary Statement (Routledge Taylor & Francis Group 1991)

BASILE KC, ‘Rape by Acquiescence’ (1999) 5 Violence Against Women 1036

<http://journals.sagepub.com/doi/10.1177/1077801299005009004> accessed 11 November 2020

Bentham J, The Principles of Morals and Legislation, Chap. XVII, Section IV (Prometheus

Books 1988)

Bergen R, Wife Rape: Understanding the Response of Survivors and Service Providers (SAGE

Publications, Inc 2014)

Burt MR and Albin RS, ‘Rape Myths, Rape Definitions, and Probability of Conviction’ (1981)

11 Journal of Applied Social Psychology 212

<https://onlinelibrary.wiley.com/doi/full/10.1111/j.1559-1816.1981.tb00739.x> accessed 11

November 2020

Cheal D, Families in Today’s World: A Comparative Approach (Routledge Taylor & Francis

Group 2008) <https://www.taylorfrancis.com/books/9780203007211> accessed 11 November

2020

Cowan G, ‘Beliefs about the Causes of Four Types of Rape’ (2000) 42 Sex Roles 807

<https://link.springer.com/article/10.1023/A:1007042215614> accessed 10 November 2020

Davis NJ, ‘Book Reviews : Against Our Will: Men, Women, and Rape, by Susan Brownmiller.

Pp. 471. New York, Simon and Schuster, 1975. $10.95. The Charge Is Rape, by Gerald As-Tor.

Pp. 215. Chicago, Playboy Press, 1974. $7.95’ (1977) 23 Crime & Delinquency 455

<http://journals.sagepub.com/doi/10.1177/001112877702300415> accessed 11 November 2020

Donnelly J, ‘Human Rights and Human Dignity: An Analytic Critique of Non-Western

Conceptions of Human Rights’ (1982) 76 American Political Science Review 303

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</core/journals/american-political-science-review/article/human-rights-and-human-dignity-an-

analytic-critique-of-nonwestern-conceptions-of-human-

rights/D09A32D45255C66877DEE452FA02F3E4> accessed 31 August 2020

Estrich S, Real Rape (Harvard University Press 1987)

Frey R, Utility and Rights (University of Minnesota press 1984)

H.L.A. H, The Concept of Law (Clarendon Press 1961)

Jordan CE, ‘Violence against Women in Kentucky’ [2014] Violence against Women in Kentucky

Kung’u CW, ‘Criminalization of Marital Rape in Kenya’ [2011] University of Toronto Publishers

Marle K van, If God Is Male Then the Male Is God - PULP FICTIONS No.3 (Karin van Marle

ed, Pretoria University Law Press 2007)

Pagelow MD, ‘Marital Rape’, Handbook of Family Violence (Springer US 1988)

<http://link.springer.com/10.1007/978-1-4757-5360-8_9> accessed 11 November 2020

‘Painful Tradeoffs: Intimate-Partner Violence and Sexual and Reproductive Health Rights in

Kenya - GSDRC’ <https://gsdrc.org/document-library/painful-tradeoffs-intimate-partner-

violence-and-sexual-and-reproductive-health-rights-in-kenya/> accessed 11 November 2020

Randall M and Venkatesh V, ‘The Right to No: The Crime of Marital Rape, Women’s Human

Rights, and International Law’ (2015) 41 Brooklyn Journal of International Law

<https://brooklynworks.brooklaw.edu/bjil/vol41/iss1/3> accessed 10 November 2020

‘UN Women Executive Director’s Statement for the International Day for the Elimination of

Violence against Women, 25 November 2019 | UN Women – Headquarters’ (UN Women, 2019)

<https://www.unwomen.org/en/news/stories/2019/11/statement-ed-phumzile-day-for-the-

elimination-of-violence-against-women> accessed 10 November 2020

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Williams LS, ‘The Classic Rape: When Do Victims Report?’ (1984) 31 Social Problems 459

CASES

R v R [1991] UKHL 12 (23 October 1991)

State v Oliver, 70 NC 60, 62 (1874)

CONSTITUTION

Constitution of Kenya 2010

STATUTES AND INTERNATIONAL LAW INSTRUMENTS

Declaration on the Elimination of Violence against Women

The Sexual Offences Act No. 3 of 2006

The Universal Declaration of Human Rights, 1948

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