THE KENYA’S MARITAL RAPE EXEMPTION AS A VIOLATION OF FUNDAMENTAL HUMAN RIGHTS

Abstract

Kenya’s marital rape exemption is a stark violation of fundamental human rights. This paper explores the legal and practical dimensions of this exemption, highlighting its conflict with the Constitution and international law conventions. This paper employs a rights-based approach and delves into the theoretical origins of marital rape exemption and its implications. The paper also addresses the inadequacies in addressing intimate partner violence and their impact on the rights to life, liberty, security and bodily integrity.
This research, seeking to examine the rationale behind the marital rape exemption, finds that it is rooted in misconceptions of consent in marriage supported by qualitative and quantitative arguments for the distinction between spousal rape and stranger rape, which are herein debunked. The paper also provides an illustrative historical development of the marital rape exemption informed by the development in both English and Kenyan law.
The research challenges the false justifications of marital rape exemptions and reveals their fallacies. These justifications are premised on three arguments: the privacy of marriage, false charges, and preserving the institution of marriage. This paper finds that these justifications are pervasive and argues that preserving marriage should not supersede the enjoyment of individual rights. Further, the research pits spousal rape against conjugal rights and examines whether the latter is absolute. The paper, borrowing from Pauline and Kantian philosophical underpinnings, concludes that conjugal rights are not absolute.
Finally, the research examines the human rights framework that necessitates criminalizing marital rape. The paper finds that Kenya’s marital rape exemption under Section 43 (5) of the Sexual Offences Act violates fundamental human rights vested in international human rights instruments, including CEDAW, GR 19 and the Beijing Declaration. The paper therefore underscores the need for legal reform addressing marital rape