Women themselves can be the agent of their own change.
— WINNIE KAMAU, law professor,
University of Nairobi, Kenya
In 1969, twelve women met at a workshop in Boston, Massachusetts, whose topic was “women and their bodies.” What eventually came out of that get-together was groundbreaking. The women asked each other such questions as, how come doctors are the arbiters of a woman’s body? Why aren’t women making their own decisions about their health? Where was the knowledge women needed?
The sixties had been a heady decade for Western women, as one group of equality seekers after another challenged the status quo in everything from health, to education, to marriage, to careers. The Boston dozen decided to research and gather the information women needed about their own bodies and ended up coming together in a book collective to publish Our Bodies, Ourselves, which soon became not only a blockbuster bestseller but a requisite for women, who had long pondered the mysteries of menstruation and acne, pregnancy and birthing, birth control and menopause, yet had accepted that a doctor’s opinion and instruction was all they needed. The new generation digging into Our Bodies, Ourselves insisted that they’d make their own decisions.
Although much has changed, the final frontier for women is still having control over our own bodies, whether in zones of conflict, in rural villages, on university campuses or in kitchens. In 2009, Farida Shaheed, the UN expert on culture, did a multi-country research project, “Women’s Empowerment in Muslim Contexts: gender, poverty and democratization from the inside out,” exploring these truths: “It is clear that women can be empowered in the marketplace but not in the bedroom. You can have this right but not that right. You’re allowed to go out to work but not allowed to socialize.” Like most researchers in this area today, she feels that the problem won’t be solved until men get involved. “This is holistic because you can’t change society by changing only half of it.”
Comments such as “I only tapped her—you can’t call that hitting” and “She’s my wife—I have every right to have sex with her whenever I want” are still common responses from men who think they own women’s bodies. For women, that lack of control has at times only held us back but at other times has oppressed and brutalized us. In the past five decades, laws have changed, attitudes have altered, misogyny has been exposed. But rape has persisted as a tool of war, a weapon to oppress women and a power play by men.
Joanna Kerr, the director of Action Aid in Johannesburg, South Africa, says that despite the international conventions countries have signed, “It’s really local power brokers … whether it’s fathers, whether it’s priests, whether it’s moms, whether it’s grandmothers … who want to determine how girls and women dress, when they will marry, have children, how they will space their children. Having control over our own bodies is the final frontier for us.”
The publication of Our Bodies, Ourselves launched the conversation in North America in the seventies, but in much of the world there’s been a taboo against discussing related topics—marriage, sex and the right to self-determination when it comes to reproduction. Some of the most merciless acts of violence have been committed against women who simply had no recourse when someone else decided whom they would marry and when the marriage would take place. Abuse is also a result of a presumption of ownership once a woman is betrothed. And there is a long-accepted view that the violence used against women in the home is a private matter. But now women in Asia, Africa, the Middle East and elsewhere are engaged in a conversation they dared not have before. They’re challenging laws and cultural norms and religious doctrine in order to strip away the misogyny and take control of their bodies.
It is savvy young girls and feisty women who are setting an example in places that still follow ancient traditions; their courage and tenacity are leading to changes most people thought impossible.
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Having the right to choose your own husband and the age at which you will get married is an important piece of the final frontier for women and girls. But being regarded as the equal of your husband after you are married—in particular, having the right to refuse to have sex with your husband—is another.
This was the frontier I was researching when I travelled to Kenya in 2010 to write a story about the first project of the Equality Effect. I started this book by describing their unprecedented initiative to help 160 girls in Kenya sue the government for failing to protect them from being raped. As the book goes to press, that case has gone to court. But before it began, the Equality Effect had launched their first groundbreaking program in Africa, called Three to Be Free.
In the past three decades, while human rights have become the new standard in much of the world, even in Afghanistan, the rights of women in many African countries haven’t budged. African women are treated as chattel and are vulnerable to ghastly forms of violence. Since women have no right to say no to sex, they have become the face of HIV/AIDS. Family violence hasn’t been curbed even a little, and marital rape is legal. All of which means that sexual assault is state-endorsed violence and a form of social punishment for married women.
That’s why an intrepid collection of women human rights lawyers from Canada, Kenya, Malawi and Ghana were bivouacked in a hotel room in Nairobi when I caught up with them in 2009, putting the finishing touches on a plan that would criminalize marital rape. The Three to Be Free program targeted three countries—Kenya, Malawi and Ghana—with three strategies—litigation, policy reform and legal education—over three years to establish a woman’s equality rights and in particular her right to refuse to have sex with her husband.
When the African women in the room wondered if the model used in Canada in the early eighties to reform the law on sexual assault—which relied on rewriting the statute, educating the judiciary and raising awareness with the public—could work in Africa, Fiona Sampson, executive director of the Equality Effect, an organization that uses human rights law to transform the lives of women and girls, told them that it could indeed work, and very well, in fact. She’d connected with the women lawyers in Kenya, Malawi and Ghana, as well as women across Canada, who were willing to work pro bono on this potentially precedent-setting initiative. Now they’d gathered to advance their ambitious agenda. They knew it would take at least two to three years to litigate an issue like marital rape through the courts and that test cases could only be mounted once they had lobbied to change the law and had built public awareness to support it.
Most people predicted a ferocious backlash to any new law that said women could refuse to have sex. When on that same trip I travelled “up country” to Kanjuu in the district of Kirinyaga, ninety minutes northeast of Nairobi, and asked men there how they felt about the proposed new law that would criminalize marital rape, I got an earful. “I own her. The dowry I paid for her means she’s my property,” said Linus Kariuki, forty, a usually soft-spoken man who sits on the town council in Kanjuu, a village of about five hundred families. He believed that the controversial proposal to make marital rape a crime in Kenya was not in keeping with African tradition. “If my wife refuses to have sex with me, I will rape her. And then I’ll beat her because she didn’t obey me.” His fury on that February day in 2009 when we met was being fuelled by the meeting in Nairobi that I had just come from.
So I asked the women of Kanjuu how they felt about the proposed law. “Women need to have the right to say no, but men here have the authority, and women have no power at all,” said Jedidah Wanjiku, twenty-nine. Six women had gathered inside her home to meet with me, not just to escape the blistering noonday sun but also because they wanted to voice their approval for the new law safe from their husbands’ scrutiny. They told me that the consequences for refusing sex were harsh and immediate. “He’ll kick you out of the house, send you to the bush to spend the whole night outside with the kids; he’ll burn your clothes, kill your chickens and eat them and sell your goats,” Wanjiku said, and also confided that she was the only woman in the room whose husband didn’t follow these old traditions: he worked as a photographer in Nairobi and believed in women’s emancipation. Her friend Ann Wanjiku, thirty-four, said, “When you come back to the house, he [a husband] will beat you for disobeying him. After a man marries you, he owns you completely. He can do whatever he wants to you. That’s the way it is here.”
Getting rid of the dowry and therefore the sense of ownership a man has over a woman would seem a place to start, but the lawyers thought it would be easier to change the law than to tackle ancient customs. They also thought that the criminalization of marital rape would have a trickle-down effect. “Women will achieve increased equality under the law and will be recognized as persons rather than property,” said Sampson. “Furthermore, it will establish a culture of accountability for women’s human rights and improve the physical safety and security of women.”
Building public awareness was a critically important step, as evidenced by the brouhaha in the villages before the law was even written. Everyone knew the change in the law was coming eventually; there were regular radio broadcasts alerting citizens all over Kenya. But the men, for the most part, pretended it was not happening. Jedidah Wanjiku said, “We need a delegation to come from Nairobi and tell the people here to change the way we behave. They need to say that women have feelings, that a bully in the house is not good and women are the same as men. The men in the village will listen to people who come from outside.” So far, no one had come.
The sticking point for these women, as well as the reformers in Nairobi, is customary law. All three countries operate with two distinct sets of laws—the formal laws of the state, and customary laws that aren’t codified, aren’t written down and are determined by men. The customary law regarding marital rape is that neither wife nor husband can deny sex to the other unless one is “sick, menstruating, in childbirth or attending a funeral.” The chiefs enforce these customary laws, and most villagers, as well as the lawyers discussing the laws, agreed that they worked against the rights of women, either out of ignorance or in collusion with men.
Ngeyi Kamyongolo, a law professor at the University of Malawi, told me, “Customary law is what we live with. It defines a woman’s identity, how she relates to others, and it is the most accessible form of dispute resolution.” Because it regulates marriage, divorce, inheritance and property, because it’s patriarchal, biased and goes against gender equality, women pay a mighty price for obeying its rules. Elizabeth Archampong of the faculty of law at Kwame Nkrumah University said, “When you get married there’s the presumption you will give yourself up, any time, every time and all the time for sex.” And Seodi White, a lawyer from Malawi, said that violence is often a part of the marital bargain and gave me some graphic examples: a man jamming a broken piece of furniture into his wife’s vagina, another applying a python to her vagina because a witch doctor told him it would spit out coins after doing so, still another cutting off his wife’s labia majora and selling it as a charm—all these terrible acts considered legal as she is his property. In Ghana, Marceline Kabir, a nurse, told me, “When a woman tries to run away from her husband, other villagers will catch her and bring her back. Even a child of a forced marriage or a woman with wounds from female genital mutilation will be sent back to her husband. And even if he’s drunk and abusive, the woman has no say.” She told a story about a woman in her village who ran for her life when her husband was beating her. She was caught, trussed up like a goat and brought back to her husband. What’s more, if a woman reported the rape or the abuse, she was likely to suffer more grief from the other villagers. One woman walked around for more than a year with a dislocated shoulder because she didn’t dare ask for help for fear that her husband would throw her out of the house to fend for herself if she exposed the fact that he had beaten her.
Customary law is seen as the personal law of all citizens, so no one can opt out of it. Kamyongolo gave me another example. “A man killed his wife because she refused to have sex with him. He was arrested by the state and charged with murder. But since a woman has no right to say no, the customary law court declared her behaviour provocative and found her husband guilty only of manslaughter.”
Malawi, Ghana and Kenya reformed some of their laws around sexual violence in 2006 and 2007, and marital rape was part of the package, but in each jurisdiction the parliamentarians on the review committee said, “Get rid of the marital rape section—it will never pass—our men will never allow it.” The reformers in all three countries succumbed, and the reforms went through without mention of marital rape.
The Canadian women on the Three to Be Free team had faced a similar resistance back home in Canada. Jennifer Koshan, a professor of law at the University of Calgary, told her African colleagues the story of how many male members of Canada’s House of Commons had burst out laughing, joking to each other across the floor about beating their wives, when MP Margaret Mitchell presented the sexual-assault law-reform package in the House in 1982. “Before 1983 there was immunity for men who raped their wives in Canada for the same reasons African women are struggling with now: women were assumed to be property once married and there was implied consent because of marriage vows,” she said. Even today some judges rely on old adages like “When a woman says no she means yes.”
Mary Eberts, who has spent most of her career pursuing cases that promote equality in Canadian law, says, “Marital rape is one of the toughest barriers to the full equality of women, conceptually at least, since it is a remaining incident of married women’s inferior, or non-existent, legal position. I do not, though, see that it is the only keystone to change. Each barrier will still have to be taken, one by one.” Eberts, too, believes that it’s often easier to change the jurisprudence first, because there you are dealing with educated elites who have less allegiance to “the way it was” in many areas than do the people who hold “custom” dear. “They also know in their heart of hearts that changing the jurisprudence gives them the best of both worlds: they can look progressive without necessarily affecting real change, because changing the jurisprudence is not the whole story. There remain enforcement issues, i.e., maybe the law will be changed on the books but won’t be enforced with vigour. But for those to whom symbolism is important, it seems like a victory.”
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In Nairobi that February, just three years ago, the women sat like a posse around the long meeting table, creating their strategy to change the law, sharing the stories of rape and domestic violence that brought authenticity to the project, poised to pounce when the time is ripe. They debated the wording of the new statute, parsing every sentence, trying out the vocabulary. Were the language and interpretation broad enough? What about consent—was the definition precise enough?
Effie Owuor, a recently retired judge who is a driving force for women’s rights in Kenya, blazed the trail as the first woman magistrate (officiating in a lower court), then as the first woman judge. She was currently the chair of her country’s task force on sexual offences. She said, “It’ll be difficult for a judge in Kenya to convict on marital rape in view of the clear omission of marital rape in the code.” She suggested it might be better to catch the person with an assault charge rather than try to make sexual violence stick.
Other women at the table asked this icon of women’s progress questions such as, “How would you deal with marital rape when it’s a child in a forced marriage?” The no-nonsense judge replied, “I would put it under the Children’s Act and say ‘customary law is in conflict with written law. This is a child. I argue for the child. I don’t want to hear any other argument.’ That’s all I would say.”
And if it was an adult rather than a child?
“I’d use the ‘person’ argument. Move away from the issue of marriage. Tell them, ‘She didn’t consent to a beating through marriage. It is nonsense to say there’s consent here.’ I’d go with that until I convict.”
The judge said she’d already seen the signs of change. “It used to be that a woman’s role was to read the closing prayer at the village meeting. Not anymore. Change isn’t coming from on high down. It’s coming from the grassroots up.”
The discussion at that table was history in the making. A lawyer from each country described the existing laws in Ghana, Malawi and Kenya, as well as in Canada. Then together they dissected each one. They thrashed out the details—where to delete a section or add an amendment. Judge Owuor reminded them, “We need to remove certain sections of the penal code such as ‘this does not apply to married women.’ ” Then she advised that they sneak the marital rape law into the middle of the code and presume that most MPs wouldn’t read the whole thing. “Or wait for a day when the members who are against it are not in the Parliament.”
Some felt that they needed to tread softly with language, dressing up the law with phrases acceptable to villagers—for example, positioning it from a perspective of caring about and protecting women rather than using words like marital rape, and using phrases seen to be free of violence rather than to be equal. “Play on humanity,” suggested Seodi White. “Use non-politicized language such as ‘a man who loves his wife wouldn’t beat her.’ ”
That approach didn’t get much support at the table.
Together these women underscored the consequences for a woman who reports violence: she may have to get up at four o’clock in the morning and pay bus fare out of scant resources to get to the court in the city. She gets home at eight at night, after waiting her turn in the court and catching a bus back to the village; her children are hungry, and it’s too dark to plant the fields, which is the work she needs to do to grow food for the family. Her case gets postponed over and over again.
“No wonder she gives up,” said Judge Owuor. “When you go to court, the social worker is there collecting your children because you aren’t at home taking care of them and your man is next door carrying on.” They all agreed that a woman can’t have access to justice without looking at these issues. “Sexual assault and abuse affect us physically, but also socially and emotionally; it affects families, jobs, the entire country,” said Judge Owuor.
Her views were backed up by the Kenyan member of parliament Millie Odhiambo, who said, “This new law being proposed will not be very well received. They’ll say it’s not African style.” But she also said, “Domestic violence used to be a topic no one would talk about; now, people are being prosecuted left, right and centre.”
Seodi White summed up the conundrum. “The issue is about a law that gets into the blankets, the bedroom. We’re not criminalizing all men. We’re criminalizing the act—and the bad men. It’s doable. It’s a process we need to negotiate with the general public, hear their views, give a little, take a little. Somewhere along the line, we’ll get it right.”
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When I asked Fiona Sampson in August 2012 how the reform process was going, she said, “We have been researching the treatment of consent in sexual assault law and discovered a sticking point relating to the legal treatment of marital rape, i.e., wives are understood to have consented to any/all sex upon marriage.” They have scheduled another strategy workshop to vet the research completed to date, and to decide whether next steps will be more public legal education and awareness-building, a formal request for marital rape to be written into the penal code, or litigation, which, if successful, could force the hand of the court.
My bet is that they’ll get it right soon. While touring the villages in the district of Kirinyaga, I talked to three groups of men: men over seventy, who were so horrified by discussing the topic with me that they suggested we meet in the woods out of the view of the other villagers; forty-something men; and men under thirty. The older men were outraged with the suggestion that women should have the right to say no to sex, but they admitted that sex was no longer a big part of their lives, so if the law was passed, it wouldn’t really matter to them. The men in their forties said that they’d fight the passing of the law, they’d go to Nairobi en masse, they’d march in front of the legislature. But if they lost, they’d obey. The twenty-somethings? Well, they couldn’t imagine what the fuss was about. Said one, “The young men sleep with their girlfriends. The women do as they wish. They all go to work. It’s not an issue with them.”
At a public meeting to air opinion on the proposed law, John Chigiti, a Nairobi lawyer, described the discussion of the topic as a potential win-win situation for everyone. “We need to create a critical mass that can rally around this issue. Discussions like this are the way to do that.” When a member of the public asked about backlash, Melanie Randall, a law professor from the University of Western Ontario, replied, “They’ll say the law has no place in the bedroom; that this law breaks up families and attacks men; that it doesn’t value children. Don’t let that deter you. The strength of the backlash shows the efficacy of your work.” Her advice: “Diffuse it or ignore it.”
At the end of the event, the facilitator, Judy Thongori, a family lawyer in Nairobi, spoke for everyone in the room when she said, “Ten years from now people will look back at this meeting and say, I was in the room that day; the end of marital rape started right here.”