Gender activists have slammed the statement made by Tatitown court president, Margaret Mosojane, that there is no marital rape.
When she was making a presentation at a gender violence workshop in Francistown recently, Mosojane is reported to have said that it was up to a woman to leave her man if he does not fulfil his conjugal obligations.
"Likewise, if I am having a period, or my cervix is painful, I should tell him. If he touches me, and I just tell him I do not want to do it, I am breaching the contract. You have got to give it to him whenever your man wants to have sex with you because you agreed that it is what you will do," she said.
However, gender activists have not taken lightly to Mosojane's utterances.
The coordinator of the Maun based Woman Against Rape (WAR), Mpho Mahopolo, insisted that marital rape exists despite Mosojane's view.
She stressed that marital rape is there even though it might not be recognised in the country's laws. "The fact that the law does not recognise marital rape does not mean that it does not occur," WAR says.
She said if you look at the definition of rape, there is no way it could not cover marriage. Mahopolo said if a man forces himself on his partner then it is rape. She believes that rape can occur within and outside marriage.
She said there is a misconception that the institution of marriage is an arrangement for sex. In Mahopolo's view, "marriage is not about sex only. It involves other factors as well".
She said when couples exchange marriage vows, they never say "I will always have sex with you whether I feel well or not". She said there is no clause about sex when people take marriage vows.
The gender activist said the definition of marriage does not mention sex.
Mahopolo said they have dealt with cases in which women have been raped by their husbands. She said there are a lot of women who have been sexually assaulted by their husbands.
The coordinator of Kagisano Women's Shelter, Kgomotso More, also insisted that marital rape does exist. She said it occurs mostly in cases where there is no love and respect.
"If there is no mutual respect, there will be marital rape," she said, adding that the most important thing in a marriage is mutual respect.
She said if one partner does not want to engage in sex then he or her feelings have to be respected. Mahopolo said sex should be used as an expression of love and not violence.
"But one should not be forced into submission," she said.
In a statement, the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) said it found Mosojane's statements extremely distasteful, especially in light of HIV and AIDS infections. BONELA said in this risky era it has become imperative to negotiate safe sex, both in and out of marriage.
According to her, "marriage is a contractual agreement and women should avail themselves to their husbands' desires, alluding that men's sexual interests within marriage surpasses that of women".
BONELA said Mosojane's statement degrades the position of women and also breaks communication within marriage by denying women the space and liberty to discuss their sexual reproductive health rights.
Further, BONELA finds Mosojane's utterances to be a betrayal of the struggle for gender equality by placing the burden and responsibility of child bearing and birth control solely on women, which strategically absolves men from such responsibilities.
In addition, BONELA said her nullification of marital rape goes against the core concepts and strategies of eliminating gender based violence.
"Denial of marital rape, has contributed to denial of justice for women. The wider implications are that women who have reason to fear exposure to HIV infection from their husbands are denied post exposure prophylaxis which may give them a chance of not being infected by HIV," according to BONELA.
It also points out that factors such as gender based violence undermines women's ability to negotiate safer sex resulting in pregnancy.
Specially elected MP, Sheila Tlou, said Mosojane might have been referring to a good marriage. In a good marriage, she said, nobody forces himself or herself on another partner.
"In a normal marriage, the partners compromise. If you are not feeling well, nobody forces you," she said.
She said Mosojane might not be talking about a marriage which has gone to the rocks. "We are talking about a collapsed marriage."
She said in such a scenario, a drunken husband beats up his wife and then forces himself on her. "He is actually raping her. This is an act of violence," she said.
"We need to define marriage. People live in lousy unions and that is where rape comes in. Marital rape occurs especially in bad unions. If it is done as violence, it should be seen as rape," said Tlou.
She said there are also cases when a woman has been separated from her husband but he continually forces himself on her. "Legally they are married but not emotionally. That is rape," she said.
A few years ago, a Gaborone magistrate dismissed a case of marital rape because there is no such a legislation in the country. This led to gender activists calling for the enactment of a marital rape law.