By Garry Hertzberg, practising attorney at Dewey Hertzberg Levy Attorneys and presenter on The Laws of Life on Cliffcentral.com writes:
A marriage is a contract between two people, and like any contract, there are rights and obligations involved.
Some consider ‘marital duties’ to be intercourse, and some men think that it is their right to have sex with their wives whenever they feel the urge.
The law provides that a marriage can be cancelled if at the time of the marriage either of the spouses are unable to have sexual intercourse. We can consider sex to be an integral part of matrimony. However, on the other hand, this does not mean that it is a duty to give or a right to demand sex from a spouse or partner. It is a mistaken belief that a spouse is entitled to force themselves on the other. A husband, who demands and takes sex from his wife whilst she is just not into it, is a rapist.
This means that regardless of the tradition, custom or religion, forcing sex on a spouse is rape. In times gone by, the law actually protected married men who raped their wives. Those days are long gone, and good riddance.
Marital rape, or spousal rape, is the act of forcing sex on a romantic partner that is at that time unwilling. This is the law, it does not matter who is involved, it does not matter if there is a belief that a spouse has the right to marital duties, it does not matter what your religion or custom says. It is the law, rape is rape, and saying no is a right.
In 2007, the Criminal Law Amendment Act made it law that it would not be a defence for an accused person to say that they were married at the time of the rape, and also a married person cannot justify a lesser sentence. This means that a charge of rape must be dealt with without any regard for a relationship or marriage.
I hope that this gives South African women hope and optimism that we, as a society, have begun to recognise the victims of spousal abuse in every form, and to stand up for them.
