When it comes to consent, we tend to always talk about it in terms of non-permanent relationships: a colleague, a cat-caller on the street, a hook-up, maybe someone you’ve been dating for a bit. But what about your husband or wife? Or someone you’ve been with for years and years?
You know: that person who knows more about you than anyone else. The person who’s probably seen you pee and held back your hair when you vomit. The person who knows what you look like sans makeup in your ugliest sweatpants. How does consent work, here?
Well, the answer is pretty simple: exactly the same as in any other context. ‘Legally, you can absolutely refuse consent within marriage or a relationship,’ confirms Thandiswa Maholwana, an attorney at Legal Aid SA Advice Line.
But the reality often doesn’t play out that way. In fact, marital rape only became legally a thing in South Africa in 1993. Which meant that before then, our laws didn’t believe it was possible to be raped by your husband or wife.
But, of course, that way of thinking is completely wrong. Being married to someone doesn’t mean they own you, or that you lose your ability to consent (or not) to something. Your husband or wife is never ‘entitled’ to sex, and if you don’t want to do something sexually, it’s a criminal offence for your partner to force you to.
Here’s the other thing: all other rights and rules about consent exist the same in marriage. Is your husband stealthing you (pretending to wear a condom and secretly taking it off during sex without your consent)? That’s illegal – and it’s sexual assault. Does your wife pressure you into sex when you don’t feel like it? That’s abuse, too. Has your husband ever had sex with you while you were drunk or asleep, and you were unable to say ‘Yes’? Sexual assault.
What can you do?
‘You can report this like any other rape, assault or abuse. Section 56 of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007, as amended, specifically says that it is not a valid defence for a person to say that they are married or in a relationship,’ advises Lizelle Erasmus, another attorney at Legal Aid Advice Line.
Is marital rape or assault grounds for divorce?
You can divorce your partner whenever you want to, and for pretty much any reason you please. ‘In our law, we do not have a fault-based divorce. This means that a spouse does not have to do something wrong for the other to get a divorce,’ says Erasmus.
But yes – assault or abuse is definitely a good reason to leave your partner!
If you need legal help and advice around leaving an abusive partner, call the Legal Aid Advice Line for free: 0800 110 110.
What about other other forms of abuse, like physical abuse?
Abuse is never okay – and remains illegal – even if you are married to your abuser. Your rights never change because you are married, in a long-term relationship or living with someone. They also do not change if your abuser is the breadwinner or pays your expenses.
Legal Aid Advice Line (free)
- Call 0800 110 110 (toll-free) or the Please Call Me service through 079 835 7179
- They will also be able to tell you which Legal Aid office is closest to your location
- Call their HQ: 011 642 4335
- Download the free POWA GBV app for Android or iOS to report abuse and find help centres near to you
- Call 0861 322 322
- Dial *134*7355#
- Call 10111
- Visit their FCS Unit