Browsing by Author "Nasha, Refilwe M"

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    Criminalising Marital Rape in Botswana: The Need for Legal Reform
    (2020) Nasha, Refilwe M; Amien, Waheeda
    Marital rape is not a criminal offence in Botswana. This means therefore that, the law of Botswana recognises other forms of rape, except for marital rape. Marital rape is a form of intimate partner violence that the Convention on the Elimination of all Forms of violence Against Women refers to as domestic violence. Marital rape is also a form of gender based violence against women because it is a violence that is directed against women because they are women. Marital rape results in serious medical, emotional and mental harm. As a result, marital rape violates numerous human rights that range from the right not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment, the right to security and liberty of the person, as well as the right to health, just to mention a few. The human rights that are violated by marital rape are provided for under international human rights instruments that Botswana has ratified. Further, The Constitution of Botswana contains, in its Bill of Rights, a provision that guarantees every person in Botswana protection of the law regardless of sex. The biggest challenge for this dissertation is that there is no scientific evidence that serves as authority that marital rape does occur in Botswana. However, the findings of the studies conducted on gender based violence show there is a strong possibility of marital rape due to some cultural factors that give men sexual entitlement in a marriage. Further some women have come out to relate their rape ordeals at the hands of their husbands. With this dissertation, I seek to make a case for the criminalisation of marital rape. My argument in this dissertation is that, even without scientific evidence in the form of statistics, any form of violence against women is a violation of women human rights. As a result, it is necessary for Botswana to put measures in place, including criminalising marital rape, to protect married women’s human rights. Further, even though a sovereign state, Botswana has ratified international human rights instruments and is therefore bound by its international obligations to prevent, eradicate and punish any form of violence that violates human rights. Furthermore, other than what international law provide in regard to criminalisation of marital rape, marital rape needs to criminalised in order to provide effective protection and remedies for married women against marital rape.