sexual health and human rights in the african region - The ICHRP

Such differentiation constitutes unequal protection under the law and indirect
discrimination against women.
[34] Lesotho criminalizes marital rape but subject to a significant qualification.
Section 3(3) of the Sexual Offences Act says:
Marriage or any other relationship shall not be a defence against a charge under this Act where it
is shown that:
(a) the complainant spouse or partner was sick;
(b) the accused or partner had or was reasonably suspected to have sexually transmissible
disease or other life threatening disease;
(c) violence or threats were used to engage in a sexual act;
(d) there is a judicial order of restraint in respect of the accused;
(e) the spouses or partners are separated by an order of Court;
(f) one of the spouses had deserted.
It is doubtful whether the removal of the husband’s immunity under the Sexual
Offences Act of Lesotho amounts to meaningful reform to the extent that the law
still recognizes the exception where the wife is not ‘sick’. By not recognizing as
rape coerced sexual intercourse with a wife who is not sick providing the other
listed exceptions do not apply, the Act risks unwittingly promoting the idea that
husbands are entitled to sexual access for as long as they do not use blunt
violence. The Act implicitly puts on onus on a wife who complains of rape to
prove that she was ‘sick’. The crime of an unlawful sexual act requires mens rea,
the complainant would also have to prove that the husband knew that she was
‘sick’ or was reckless as to whether she was ‘sick’. Another failing in the
protection that the Act purports to give is the use of the concept of being ‘sick’.
The Act does not provide a criterion for determining what falls within the
meaning of ‘sick’.
5.5 Rape Immunity Based on Agreement to Marry
[35] In some parts of Africa, there are customary practices that still condone the
abduction and rape a girl if the perpetrator and the victim ‘agree’ to marry.
Ethiopia has been cited as a country where some regions recognize a cultural
practice where a girl, often a very young girl who is barely pubescent, is
abducted by a group of young men and then surrendered to be raped the
‘prospective groom’ for the purpose of ultimately extending a marriage
proposal. 593 The abducted girl may or may not know the ‘groom’ for whom she is
being abducted. Following the abduction and rape, the abducting parties then
apologize to the family of the abducted girl, and at the same time offer marriage
593 Ethiopia: Abduction and Rape—Law Reform and the Case of Woineshet Zebene Negash. Available at
www.equalitynow.org/english/actions/action_2203_en.html; CAA Packer Using Human Rights to Change
Tradition: Traditional Practices Harmful to Women’s Reproductive Health in Sub-Saharan Africa (2002) 42.
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