ONE of the most important features of a marriage are the unlimited conjugal rights that each of the parties to the union enjoy.
Conjugal rights may be defined as the rights that a husband or wife is entitled to in a marriage — the right to be intimate with his or her spouse.
It is, however, not unusual to find a spouse being denied the right for various reasons. The denial of conjugal rights by either party may create tension between couples. This can be the basis for divorce.
The media is awash with stories of married couples fighting, with some fights ending tragically, after the other has been denied conjugal rights.
Some of the devastating effects of these battles for conjugal rights manifest themselves like when tragedy struck a Kuwadzana family last year when a toddler died upon admission at a referral hospital in the capital after being crushed by a sewing machine which fell on her when her parents were fighting over this issue.
Eyewitnesses say the couple was at each other’s throat after the wife refused to be intimate with her drunken husband of three years, whom she accused of bedding several other women.
This tragic incident clearly demonstrates how not to handle conjugal rights in marriage. This case is just a clip in a series of complex marital situations that many couples go through.
Marriage counsellor Maud Nyashanu says there are several reasons why a spouse can deny the other the right to intimacy.
“A party may deny the other their right to sex because, either they don’t want to expose themselves to sexually transmitted infections (STIs), or expose their partners to STIs in case no protection is being used. It is a criminal offence under the Sexual Offences Act to knowingly infect someone with the HIV virus.”
Nyashanu added that a spouse can refuse to be intimate because s/he is not in the mood or the environment might not be conducive for the act. She urged spouses to respect each other’s choices.
“Every man and woman has a right to safe and satisfying sex and when there are no barriers sex can be enjoyable.”
In the event a spouse is denied intimacy for whatever reason, in most cases the husband can resort to forcing his way on his wife — a case of marital rape.
Whose rights are conjugal rights?
Wikipedia.org defines marital rape, also called spousal rape, as an act of sexual assault by an intimate partner.
It can also be defined as non-consensual sex in which the perpetrator is the victim’s spouse. As such, it is a form of partner rape, domestic violence or sexual abuse.
To one whose sex advances were spurned it is a right denied, but to the “victim” it is a case of marital rape. It brings to the fore the question: Whose rights are conjugal rights?
Though there are several international conventions that criminalise it, marital rape is still widely condoned and has been accepted as a spouse’s privilege.
For many, marital rape could mean anything, from yet another violation of human rights to a bedroom matter, which should remain private. They see bedroom matters as contentious issues that should be dealt with within the four walls of the inner house.
Sixty-three-year-old Wiston Mungure does not believe in the concept of marital rape. He said he does not see how engaging in intimacy with one’s own wife can be rape.
“Can an apple farmer be charged for plucking a fruit from his plantation?” he asked. Mungure said even if a husband is forcing himself on probably his sick wife, he still does not see it as rape. “A wife is obliged to look after her husband’s needs in and out of the bedroom with a few exceptions.”
Tatenda Nyika, a married father of two, finds it difficult to understand the marital rape concept.
“Having sex with my wife is no crime. This is an alien concept which goes against our cultural norms as Africans. Besides, it is only the two of us, so who decides it is rape?”
Emillia Supia (30) said even though sex is a vital component of a marriage, which serves more purpose than to please each other, she said she can’t force herself on her husband no matter what circumstances.
“I have not experienced it and I doubt if I will in my lifetime. I doubt it is common as some people want us to believe. He is my husband, for the sake of the marriage I have to let it happen without necessarily saying yes.”
However, Zimbabwe Women Lawyers’ Association legal officer Isabel Mapingure Palasida said marriages should be built on mutual respect.
“First, marriage is not about sex and sex is not marriage. If we are getting into marriages for sex, then we are heading for disaster.
Marriage is premised on mutual respect, love and partnership,” she said
Palasida added: “Second, rape is any form of sex which is non-consensual.
If she says no, regardless of her reason, it’s rape, even if you’re married. The fact that the man made dowry payments to his wife’s parents do not mean she (wife) is now his property. Spouses should respect each other.”
However, Palasida said it is unfortunate many women are afraid of reporting marital rape cases.
“After all, marriages are all about compromise. Sexual rights should be negotiated and forcing oneself onto the other, especially a husband forcing himself onto his wife, constitutes marital rape. Many women face marital rape, but they cannot report because it is socially accepted and it is difficult to press charges when the husband has paid money as lobola.”
Gender mainstreaming organiSation, Padare/Enkundleni/Men’s Forum national director Kelvin Hazagwi said there are better ways of seeking redress in the event that a partner is denied the right to sex rather than resorting to violence.
“Conjugal rights are a very important component of marriage. Both men and women are expected to be always available for their partners in times of such need. However, this does not mean that a partner should always submit to the other’s sexual advances always. There are times when one partner, due to a number of reasons, may not want to have sex and the other should respect his or her right to say no to sex.”
Hazagwi urged couples to communicate to avoid tension in the event that one is not in the mood for the bedroom activities.
“There is need for couples to communicate openly on sexual matters so that when one is denied conjugal rights, he/she will understand the reasons and take positive action to address the situation. Effective communication provides an opportunity to talk about problems and come up with non-violent ways of solving them. Violence does not solve anything; instead it creates more problems, for the couple, their children, family members and society in general.”
In November last year, Women’s Affairs, Gender and Community Development minister Oppah Muchinguri was quoted telling female legislators attending a conference on ending sexual violence that many women were being raped by their husbands and partners.
“All of you in this room who are married or have a partner have been raped at some point,” Muchinguri said.
Most Zim women have been victims of GBV
Though statistics of marital rape are difficult to ascertain, a study by the Women Affairs ministry in conjunction with Gender Links revealed that at least 68% of women in Zimbabwe have suffered from gender-based violence perpetrated by men.
Twenty-six percent of women experienced violence perpetrated by an intimate partner in the period 2011-2012.
Thirteen percent of men in the country admit to perpetrating some form of violence against their intimate partners during a similar period.
Marital rape is enshrined in the Domestic Violence Act. It is also listed as one of the forms of domestic violence in the 1993 United Nations Declaration for the Elimination of all Forms of Violence against Women which Zimbabwe ratifies.
The Act reads: “Domestic violence constitutes any act of omission of
a perpetrator which harms, injures or endangers the health, safety, limb, or well-being whether, mental or physical of the victim or
tends to do so and includes causing physical abuse, sexual abuse, emotional, verbal and psychological abuse.”
However, Peter Nharo — a member of an apostolic sect said: “We are creating problems for ourselves by making marriages more of a legal affair. Everything is now being subjected to the law even where not necessary.
“In the end, we will have unstable families, with children lacking parental love and care because of breakups and the end society suffers with un-cultured people.
“If we still want the marriage as an institution to remain intact, we should not allow it to be made a legal affair.”
Social commentators argue that the patriarchal nature of society often made it difficult to enforce legal provisions against marital rape.
The fact that most women are economically disempowered and dependent on their husbands for survival discourages them from reporting cases of marital rape — many are likely to suffer in silence.