Beyond the vows

Deconstructing the legal treatment of spousal rape in Kenya

Abstract

This paper examines the effects of Kenya’s exemption of spouses from the definition of rape under Section 43(5) of the Sexual Offences Act. While the law criminalises rape, it denies that possibility within marriage, reflecting deeper assumptions about consent, that once given, it cannot be withdrawn. Building on Jacques Derrida’s critique of hierarchical structures, the paper shows how the law treats marital consent through rigid binaries, such as consent and refusal, husband and wife, that ultimately mask a woman’s capacity to withdraw consent. Further, Gayatri Spivak’s work on subalternity is used to show how the married woman, though formally present in law, is denied meaningful recognition when she attempts to speak against sexual violence in marriage. Rather than treating legal reform as a matter updating language alone, the paper calls for a broader shift in how the law understands consent: as something ongoing and situated. It ends by proposing legal and interpretive strategies that make room for voices that have long been erased or ignored.