Marital Rape and the Cultural Defence in South Africa

• Jurisdiction: South Africa
• Pages: 25-47
• Published date: 16 August 2019
• Author: Lea Mwambene
• Citation: (2018) 29 Stell LR 25
• Date: 16 August 2019

25

MARITAL RAPE AND THE CULTURAL DEFENCE

IN SOUTH AFRICA† ††

ea Mwambene

D pNurs ng B ( ons) (UN MA) M D (UWC)

Assoc a e Professor Un vers y of he Wes ern Cape

e en Kruuse

BA B M PGD E (Rhodes)

Sen or ec urer Rhodes Un vers y

1 Introduction

In 2001, in S v Mvamvu (“Mvamvu”),1 the cour t found the accus ed guilty of

the rape, abduction, and a ssault of his spouse.2 However, the court recognised

that the accused acted in accordance with a belief t hat a conjugal debt3 wa s

owed to him by vir tue of his customary marr iage to the complainant.4 As a

result, the cour t reduced the accused’s sentence as an appropriate response to

the cultural context.5 Cre ated or in tens ied by t he Cons tit utio n of the Re publ ic

of South Africa, 1996 (“Constitution”),6 the use of this apparent customar y

belief as a mitigating factor in the case caused consternation amongst women’s

rights groups in South Africa.7 As a result, an amendment to the South African

statutes governing sexual offences was introduced in 2007.8 Sect ion 3(aA)

† This work is based on th e resea rch supp orted in par t by the National Research Foundation of Sout h

Afr ica ( NRF) ; Uniq ue Gra nt No 99 216; and th e Sena te Dis cret iona ry Res ear ch Fund s, th e Facul ty of Law,

Dean’s office from the University of the Weste rn Cape, as well a s a gra nt from t he Rhodes University

Research Comm ittee Any opinion, fi nding and conclusion or recomm endation expressed in th is material

is that of the authors; t he NRF doe s not accept any liability in this reg ard Prof Mwamb ene thanks Prof

Angela Campbel l and McGill Universit y, Montreal Canad a for hosting her resea rch visit abroad

†† Ethics consent was obtained from the Humanities and Social Resea rch Ethics Committee of the University

of the Weste rn Cape (et hics ref no HS /16/3/6, reg no;12/1/21) an d the Facult y of Law Ethic s Commit tee of

Rhodes Unive rsity (19/01/2015) We therefor e adhere to the conc epts of the research e thics and inform ed

consent

1 S v Mvamv u 2005 1 SACR 54

2 Para 2

3 Accord ing to Makowski, t he origin of the ter m “conjugal debt” ca n be traced back t o the conjugal model

that Canonists maintained, that is, that each partner owed marital coitus to each other which could only

be relinquis hed by mutual conse nt EM Makowski “Th e conjugal debt and Medie val Canon Law” (1977)

3 Journal of Medieval History 99 99

4 S v Mvamv u 2005 1 SACR 54 para 16

5 Para 19

6 See ge nerally section s 9, 10, 12, 14 and 15 of the Constitution which i mplicate women’s rights, i ncluding

the prohibitio n of discrimina tion on any ground

7 See, eg, comments on the Mvamvu ca se by G Hancox “ Marital Rape in S outh A frica” (2012) Open

Society Ini tiative for S outhern Afr ica

south-afr ica> (accesse d 16-08-2017); see al so NP Swar tz, O It umeleng, AM Danga, K Tshwene

& K Mothabatau “I s a Husband Crimin ally Liable for Raping his Wi fe? A Comparative Analys is” (2015)

3 Internati onal Journal of Acad emic Research and Ref lection 8 8

8 See gener ally the S entencing Amendme nt Act and the Crim inal Law (Sexual and Related Matters)

Amendment Ac t 32 of 2007 (the “Sexual Offenc es Act”)

(2018) 29 Stell LR 25

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of the Cr iminal Law (Sentencing) Amendment Act 38 of 2007 (“Sentencing

Amendment Act ”) prohibits courts f rom taking an accused person’s cultural

or religious beliefs about sexual conduct into account in sentencing for rape.9

Read together with section 56(1) of the Criminal Law (Sexual Offences and

related matte rs) Amendme nt Act 32 of 2007 (“Sexual Offences Amendment

Act”) (viz. “Whenever an accused person is charged with [rape, sexual assault,

or compelled instances of both] … it is not a valid defence for that accused

person to contend that a ma rital or other relationship exists or existed b etween

him or her and t he complainant”), we argue that the combination of these

two provisions bars the accu sed from adducing any evidence of his cultural

belief in a customary mar riage. However, the combined effects of these two

provisions raise problems which we discuss more f ully below.10

More than 15 years after the Mvamv u case, and 10 years after t he

amendments, in Jez ile v S (“Jezile”)11 a cultural defence12 was again raised in

an appea l against a conviction and sente nce on rape, assault and tr afcking

which o ccurred wit hin an alleged ukuthwala arrangement .13 In researching

the judg ment, we found evidence to suggest that the fact that the court did

not entertain evidence of cultural practices resonated negatively with the

co mm u ni ty. 14 More relevant to the focus of this ar ticle, the results of focus

group research that we conducted with the family and broader community

members (of both the accused and the complai nant in the Jezile case) show

an apparent bona de belief, among at least two communities in the Eastern

Cape, that consent to marr iage equals consent to sex within that marriage,

a belief that we cal l “continuing consent” but wh ich has his torically been

known as the “ction of con sent” or the “ma rital rape exemption”.15 In light

of the communities’ expres sions of disappointme nt and feelings of alienation

from the legal system following t he Jezile case, we thought it t t o question

again whet her an appa rent cultural belief (in this instance, co njugal debt in

a customar y marriage) should or does negate the existence of a ment al state

9 The provis ion in cludes the f urther prohibit ion I n det ermining the mitigat ing circumstan ces for the

purpose of se ntence in the cas e of rape, the cour t may not take into acc ount “any relations hip between the

accused per son and the complain ant prior to the offen ce being committ ed”

10 The una bridged version of section 3(aA) of the Sentenc ing Amendme nt Act reads that “when imposing

a sentence i n respect of th e offence of rape t he following shall not constitute substantial a nd compelling

circumst ances justifying the imposition of a less er sent ence: … (iii) an a ccused person’s cu ltural or

religious beliefs a bout rape; or (iv) any rel ationship between the accu sed pers on and the com plainant

prior to the offe nce being commit ted”

11 Jezile v S 2015 2 SACR 452 (WCC)

12 Cultura l defence has been descr ibed as th at which “allows members of a minority culture t o argue th at

they should be c ompletely acquitt ed of crimina l charges, or thei r culpability be at least mitigated , on the

ground t hat their cu ltural norm s were the re ason for the c ommission of th e crimes ” See Bennett (2010)

University of B otswana La w Journal 3, 4 J van Broeck “Cultur al Defence and Culturally Motivated

Crimes (Cultu ral Offences” (2001) 9 European Journal o f Crime, Crimin al Law & Criminal Ju stice 5 and

fur ther

13 Ukuthwala is t he cust om of mock abduction of a gi rl/woman leading to a cu stomary marriag e See

L Mwambene & H Kruus e “The Thin Edge of the Wedge: Ukuthwala, Aliena tion and Consent” (2017) 33

SAJHR 25 for a discussion of ukuthwala and t he decision of Jezile.

14 Transcrip tions of these discussions a re on file with both aut hors See als o Mwambene & K ruuse (2017)

SAJHR 31 on the alienation and an ger for the justice syst em by the communit ies

15 See generally the discussio ns by F Kaganas & C Murray “Rape in Marriag e — Conjugal Right or

Crimina l Wrong” (1983) Acta Juridica 125

26 STELL LR 2018 1

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