Opinion – Legal position on sex without consent in marriage

Cleopas Dumeni Kashala

This article is motivated by the current debate in print, electronic and public media over whether or not sex without consent within marriage can be considered rape.

The starting point for this question is the Namibian Constitution and other laws, such as the [a8y2000] Anti-Rape Act 8 of 2000, Married Persons Equality Act 1 of 1996, Common Law Principles and Customary Law.

Under Article 14 (2) of the Namibian Constitution, it stipulates that marriage can only be entered into with the free and full consent of the intended spouses.

This means that only people of legal age and with legal capacity can enter into marriage; now, sexual acts can only be performed by a person with legal capacity with given consent.

Lack of consent primarily occurs while you are sleeping, intoxicated, and unconscious; a sexual act committed under these circumstances is rape – whether within marriage or not.

Whereas legitimate consent is the presence of an enthusiastic “yes” without manipulation, threats or mind games.

It should be noted that the absence of consent is the essential element and it does not have to involve physical violence.

Historically, sex within marriage was seen as a right to have sex with one’s legitimate spouse without consent.

This can be attributed to common law principles in force on March 21, 1990 in which the very concept of marital rape was considered unlikely.

These common law principles, traditions or cultures suggest that the husband cannot be guilty of a rape committed by himself on his lawful wife; however, it should be noted that these common law principles and traditions have been abrogated or abolished by the [a8y2000] the Anti-Rape Act and the Married Persons Equality Act.

Therefore, it should be mentioned that marriage and sex are two different concepts; marriage cannot be used as a license for a sexual act without consent.

I must point out that the Constitution is the mother of all laws in Namibia in accordance with Article 1 (6) of the Constitution.

This means that any law that is inconsistent with the provisions of the Constitution will not have the force of law or effect.

Under Section 66(1) of the Constitution, customary law and common law in force at the date of independence shall remain in force only if not in conflict with the Constitution or any statutory law .

Therefore, customary and common law principles that give a husband marital power to commit a sexual act against his wife without consent are contrary to the Constitution, the Married Persons Equality Act and the law [a8y2000] Anti-Rape Act.

As such, these common law principles and customary law will have no legal force or effect.

Under section 2(b) of the Married Persons Equality Act 1 of 1996, the marital power that a husband had over the person and property of his wife is abolished.

Additionally, the terms of Section 2(3) of the Anti-Rape Act 8 of 2000 state that marriage or other relationships cannot be used as a justification for rape.

These laws make it a criminal offense for a spouse to commit a sexual act with their spouse without consent – ​​and one cannot be exonerated under marriage or other relationships.

Traditionally, rape was considered a criminal offense that could be committed outside of marriage.

At that time, parliament did not enact the rape law to protect spouses in marriage or other relationships.

With changing social views and international condemnation of sexual violence in marriage, Parliament has enacted various laws, such as the Married Persons Equality Act and the [a8y2000] Anti-Rape Act to criminalize rape in marriage or other relationships.

The current applicability of marital rape has not been tested in court; however, this does not mean that marital rape does not occur in Namibia.

There can be a variety of reasons why cases of marital rape go unreported, ranging from traditional beliefs to fear of stigma – and, more importantly, ignorance that a sexual act without consent within marriage or in other relationships constitutes rape.

The terms of Article 8(1)(2)(b) of the Constitution protect the dignity of all persons, and no one shall be subjected to torture, cruel, inhuman or degrading treatment.

Marital rape amounts to cruel, degrading, inhuman and torture; therefore, the importance of women’s right to sexual self-determination is recognized in our law – and this is crucial for women’s rights.

Marriage cannot be an exemption or defense for marital rape – and this is seen as consistent with developing concepts of human rights and equality for women.

In December 1993, the United Nations High Commissioner for Human Rights issued the Declaration on the Elimination of Violence against Women, which establishes marital rape as a violation of human rights.

Violations of women’s human rights are often linked to their sexuality and reproductive role.

In Namibia, for example, a spouse can refuse to have sex with their spouse, and any coercive or forced sexual act without consent is rape under section 2(3) of the fight against rape.

This law criminalizes sexual acts in marriage or other relationships without consent.

“No” to a sexual act in marriage or in another relationship always means no.

Sex should be enjoyable for both parties.

I must point out that there is something fundamentally wrong if our society still relies or believes in common law principles or religious or traditional beliefs that essentially allows this to continue; it is troubling for a husband or wife to have sex with a non-consenting partner.

It should be noted in our society that our law, namely Section 2(3) of the Anti-Rape Act 8 of 2000, makes it an offense for a sexual act without consent – whether within marriage or in other relationships.

2022-07-15 Staff reporter

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