When ‘I Do’ Doesn’t Always Mean Yes

Non-consensual sexual intercourse between spouses remains a debatable issue in Botswana. Rape is defined under Section 141 of the Penal Code as unlawful carnal knowledge of another without their consent. This definition of rape in the Penal Code remains silent on whether a husband can be found guilty of raping his wife. Many people argue that non-consensual sexual intercourse between spouses cannot be criminalized, their argument being that in marriage, spouses are entitled to conjugal rights and that the “I do” vow implies continuous consent to sexual relations in marriage. Hence, the current legal framework does not recognize non-consensual sexual intercourse between spouses, thus excluding the position of rape within marriage.

Constitutional Contradictions That Arises From Non-Criminalization of Marital Rape

Section 3 of the Constitution of Botswana states that every individual is entitled to fundamental rights and freedoms, protection by the law being one of the rights included. With marital rape not being criminalized, the Government of Botswana is failing to protect married women’s rights to security, liberty, dignity, and equal protection by the law. This, as a result, grants lesser protection to married women as compared to those who are not married, thus contravening Botswana’s constitutional commitment to equality.

Legal Loopholes That Non-Criminalization of Marital Rape Brings About

Since the current legal framework does not acknowledge the experience of marital rape victims as a criminal act, victims have little to no avenue for justice, thus leaving them vulnerable and without protection. This not only shields perpetrators but also, as confirmed by the Botswana AIDS Impact Survey IV of 2013, contributes to the increasing HIV/AIDS transmission rates. This, as a result, has weakened women’s legal standing in marriage and has discouraged them from seeking justice.

Call for Legal Reform

To address this legislative gap, Parliament should amend Section 141 of the Penal Code to explicitly criminalize marital rape and clearly indicate that consent is mandatory for every sexual act, regardless of marital status. This reform will reinforce the country’s commitment to justice and gender equality.

Criminalizing marital rape would not only fulfill Botswana’s legal and ethical responsibilities but also serve as a deterrent, reinforcing that every individual has the right to bodily autonomy and protection from violence, regardless of marital status and gender.