On the face of it, rape and sexual abuse between married couples may be considered by many as being improbable, if not impossible. However, the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007, which came into effect on 14 December 2007 provides that ANY type of sexual activity conducted without the consent of one or more parties is tantamount to an offence. What is important to note is that  in terms of this Act, this remains true IRRESPECTIVE of the existence of a marriage or the type of the marriage, whether civil or customary.

The common law, now abolished, held a different and somewhat patriarchal perspective: that is, that husbands had entrenched power over their wives. Despite being abolished, this notion persists to an extent today, especially in customary marriages. An example of this in Customary law is the old practice known as “ukuthwala”.  

Ukuthwala is primarily characterised by the abduction or kidnapping of a girl or young woman without her consent, and with the corresponding intention of compelling her family to engage in and / or endorse the marriage negotiations.

The type of marriage created in this manner is not recognised in terms of the Recognition of Customary Marriages Act, as it not only fails to adhere to the ideals espoused by the Constitution of South Africa, but is further criminalised in terms of the abovementioned Sexual Offences Act, together with the Prevention and Combatting of Trafficking in Persons Act, 7 of 2013. It therefore must be deemed unlawful.

The customary practice of ukuthwala and the common law view that women have little to no rights or sexual autonomy are only two of the reasons why husbands may feel empowered to have sexual intercourse without their wives' consent.

This prompts a conversation on equality and the Bill of Rights as the lines between male and female inequality become thicker, and gender-based-violence and domestic violence becomes more prominent. In its preamble, the Criminal Law (Sexual Offences and Related Matters) Amendment Act states that:

"The Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the rights of all people in the Republic of South Africa, including the right to equality, the right to privacy, the right to dignity, the right to freedom and security of the person, which incorporates the right to be free from all forms of violence from either public or private sources, and the rights of children and other vulnerable persons to have their best interests considered to be of paramount importance."

Without a doubt, these rights encompass the rights of both spouses. Marriage does not, in any way, diminish the individual rights of either spouse, and, conversely, it is trite that sexual conduct without consent, undermines all these rights.

Irrespective of the context of a marriage, the Act determines rape as the:

1. sexual penetration of a person, without that person's consent; and/or

2. compelling of a third person, without the third person's consent, to commit an act of sexual penetration with another person, without the consent of the other person, or what is commonly referred to as “compelled rape”.

 Other acts of sexual abuse include:

1. sexually violating a person, without his or her consent;

2. inspiring the belief in a person that he or she will be sexually violated;

3. compelling a third person without his or her consent, to commit an act of sexual violation with another person, without the consent of the other person;

4. compelling a person ("B"), without his or her consent, to engage in masturbation, any form of arousal or stimulation of a sexual nature of the female breasts, or sexually suggestive or lewd acts, with B him or herself, or engaging in any act which has or may have the effect of sexually arousing or sexually degrading B, or causing B to penetrate in any manner whatsoever his or her own genital organs or anus;

5. compelling or causing persons 18 years or older to witness a sexual offence, sexual acts, or self-masturbation;

6. exposing or displaying of or causing exposure or display of genital organs, anus or female breasts or child pornography to persons 18 years or older ("flashing"); and

7. engaging the sexual services of persons 18 years or older.

In simpler terms, all parties must give consent to any and every sexual activity of any form, failing which the other party may be found guilty of committing an offence in terms of the abovementioned Acts.

Thus, consent remains an important pre-requisite to engage in any sexual act, without which the activity may be deemed an offence. This notion further extends to acts of sexual penetration or sexual violation where a victim (whether married or not) is incapable in law of appreciating the nature of the sexual act and is thus unable to consent thereto.  This includes instances wherein the victim may be asleep, unconscious, in an altered state of consciousness or under the influence of any medicine, drug, alcohol or other substance to the extent that his or her consciousness or judgement is adversely affected or is a child below the age of 12 years or mentally incapacitated.

The crux remains however that rape and sexual abuse is possible within the context of married persons.

Written by Martin Mhlarhi

Martin holds a LLB degree as conferred upon him by the University of Limpopo in 2022 and is currently undergoing an internship with HJW Attorneys. 

For more information, kindly email us on info@hjw.co.za.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW ATTORNEYS at info@hjw.co.za directly for advice applicable to your specific matter.