My husband recently broke into my room and raped me: what can I do?

I have been married for 10 years. I call them 10 years of hell because I was in a marriage where I was emotionally abused. We agreed to separate. However, I have moved into the servants quarters of our house. I have no money to move out. A few days ago, my husband sneaked out of the main house, forced his way into my room and forced himself to have sexual intercourse without my consent. What can I do?

Marital rape is any case in which a person uses force or threat of force to compel their wife or husband to have sexual intercourse. In Kenya, rape is a crime punishable by imprisonment, but there is no legal protection against rape within marriage.

The question has always been: Is it possible for a husband to rape his wife? To many, such abuse seems absurd and far-fetched and apparently cannot occur in a marriage.

The argument of this school of thought is that a husband cannot rape his wife if the marriage bond exists.

With the introduction of the Sexual Offences Act in 2006, the legal definitions of sexual offences and their penalties were tightened. However, the law explicitly excluded protection for married women from sexual violence within their relationships.

Therefore, under Section 43(5) of the Act, it is not an offence to compel someone to perform a sexual act by force or threat of harm if you are lawfully married to that person.

Even though marital rape is not explicitly recognized, what you went through is not permissible. Your solution lies in the Protection from Domestic Violence Act, which provides comprehensive measures to protect against domestic violence.

This law defines domestic violence in the broadest sense and includes, among others, physical abuse, sexual abuse, emotional or psychological abuse, and economic abuse.

Under this law, if you are a victim of domestic violence, you have the right to seek a protection order. This order can prevent your husband from committing further acts of violence and may include provisions to ensure your safety and well-being.

In addition, the order may prevent your husband from approaching you or your residence and require him to stay away from you. The court may also grant you sole use of the house to ensure your safety.

Given the seriousness of your situation, you should report the domestic violence immediately to the nearest police station. Provide a detailed report of each incident, including the date, time, and any witnesses.

The police will then open a file and begin an investigation. It is also important to visit a hospital or healthcare provider for a medical examination. This will not only ensure your health and well-being, but will also provide medical evidence that can be used in court. Make sure you get a medical report detailing the findings.

Because the nature of this crime can make it difficult to report, I recommend that you consult a family lawyer or visit a women’s rights organization experienced in litigating gender-based violence cases.

The author is a lawyer at the Supreme Court of Kenya and an award-winning civil society lawyer ((email protected)).