3.0 Introduction
Cameroon suffers from a widespread but underreported problem of unprosecuted and unprosecutable rape within marriage as part of a wider issue regarding women’s equality. Although the availability of statistics on rape and physical violence against women in Cameroon is sparse, rape is recognized as a widespread problem.[1] The statistics that are available show high incidences of rape among the general population, and a particularly high prevalence of survivors who have been raped by their husbands.[2] Reporting of rapes is very uncommon due to social taboos[3] and a widespread belief by women that wives are subordinate to their husbands.[4] Moreover, spousal rape along with domestic violence is often treated lightly by courts and seen as a husband merely exercising his “right” to correct his wife.[5] Not only do most judges consider this philosophy a reasonable defense to rape and domestic violence, but they also accept a wife’s refusing to engage in sexual relations with her husband and the husband’s alcoholism as factors that mitigate the husband’s behavior.[6]
As an example of the massive under-reporting of rape, in Bamenda, the capital of the Northwest Province of Cameroon and a city of nearly 500,000 people,[7] only thirty three rape cases were brought to trial over the course of four years, between 2004 and 2007, with only two resulting in sentences;[8] the remaining cases were dismissed and countless others were never brought because of the discouragingly long legal process.[9]
In Djohong District, of the 600 surveyed women, 209 had been raped, twenty seven women reported the rape to authorities, four women were forced to marry their rapist, and only three perpetrators were jailed.[10]
Even if a woman is able to navigate the above challenges, bribery and corruption exist at many points along the route to achieving justice.[11] According to Transparency International’s 2007 Corruption Report, Cameroon’s judicial system was the third most corrupt in the world, and there is a widespread perception in Cameroon that in order to win a court case, one must bribe the judge.[12] With the police, the perception of corruption is so strong that ordinary people prefer not to hand over offenders such as petty thieves, because of the perceived ease of bribing arresting officers, which leads to the spread of vigilantism and “popular justice” or to victims not attempting to seek justice.[13] The existence of such levels of corruption combined with the fact that men are the primary income-earners for the family while women typically engage in informal domestic activities, place men in a much more advantaged situation within the legal system than women.33 Moreover, there are several legal provisions which permit husbands to prevent their spouses from engaging in income-earning activity, further limiting women’s access to justice.[14]
Rape could be under-reported for a number of reasons. Perhaps victims are dissuaded from seeking prosecution because of the long legal process encountered in Bamenda and doubtless experienced across the country.[15] It might be that by reporting rape, they know they will be forced to recount their stories multiple times, to different police officers, lawyers, and judges, and with each re-telling, re-open the emotional injuries they suffered.[16] They might be concerned that in their case, as is the norm, they will not be believed by the jury, and that even after a long legal process, their rapist walks free, creating a constant reminder and threat of repeated attacks.[17] Victims might be hesitant to report cases of rape because of the fear of stigmatization and desire to preserve their family’s reputation.[18] In the specific case of wives who are raped, they may not report it for any of the above reasons or because there is no crime to report, both by statute,[19] and by customary practice.[20]
Nor does this Note suggest that marital rape is solely a Cameroonian problem; Cameroon’s legal structure is merely one of many throughout the world which legitimizes abusive behavior against a spouse. Cameroon is by no means alone in failing to confront the issue of legally condoned rape within marriage. According to a recent global survey, 127 countries do not have laws prohibiting rape within marriage.[21] Only six African countries have laws which expressly provide that the rape laws apply irrespective of the relationship which exists between the rapist and the victim.[22] Although rape of a spouse is currently a crime in all 50 of the United States,[23]as recently as 1993 spousal rape exemptions existed within the United States.[24] Other countries have been similarly slow to recognize that a husband is not permitted to rape his wife.[25]
B. Cameroon’s Domestic Legal Infrastructure
The rape laws currently in place in Cameroon are generally strong, but the provision that waives criminal liability for rapists who are married to their victims represents a serious obstacle for married rape victims’ access to justice. There are four major sources of law in Cameroon: the Constitution, statutory law, common law, and customary law.[26] This section will briefly describe Cameroon’s domestic legal system and identify the gaps and inconsistencies therein that permit impunity for rapists married to their victims.
- The Dualist System
Cameroon has a dual legal system[27] in which the Anglophone (English-speaking) provinces (the Southwest and Northwest Provinces) operate under a common law system and the francophone (French-speaking) provinces (the remaining eight provinces) operate under a civil law system.[28] The major effect this distinction has is the role of judicial precedence; in the Anglophone provinces, prior judicial decisions by higher courts are binding whereas in Francophone provinces, such decisions are merely persuasive.[29] Additionally, even within the Anglophone provinces, the notion of stare decisis only operates within a particular region, similar to the U.S.’ system of different appellate circuits.[30] In practice, enforcement of this lower, regional level of judicial precedence is rare, due in part to the difficulty in obtaining prior court decisions; judicial decisions, even of the national Supreme Court, are only sporadically reported.[31]
- Cameroon’s Constitution
The current Constitution of Cameroon was adopted in 1972, but highly amended in 1996 and again in 2008, both rounds of modification granting strong powers to the executive.[32] The Constitution contains strong language supporting full equality. The preamble states, “We, people of Cameroon, Declare that the human person, without distinction as to…sex…possesses inalienable and sacred rights….”[33] It goes on to state that “every person has a right to life, to physical and moral integrity and to humane treatment in all circumstances. Under no circumstances shall any person be subjected to torture, [or] to cruel, inhumane or degrading treatment.”[34] The Preamble adds, “the Nation shall protect and promote the family which is the natural foundation of human society. It shall protect women, the young, the elderly and the disabled…every person shall have the right and the obligation to work… the State shall guarantee all citizens of either sex the rights and freedoms set forth in the Preamble of the Constitution.”[35] Article 1 guarantees “the equality of all citizens before the law.”[36]
- Rape laws
The Cameroonian Penal Code[37] defines the crime of rape,[38] aggravating factors,[39] and the punishments possible for committing rape.[40] Rape is defined as the use ofphysical or moral violence to force a woman to have sexual relations.[41] The law goes on to further refine the elements of rape. Only the actual act of sex can constitute rape; any other obscene act is punished as a crime against modesty.[42] The physical or moral violence must have been sufficient to render the victim unable to resist the attack.[43] Moral violence includes having sex with a victim who is unconscious or with a victim who is tired and mistakenly believes the rapist to be her husband.[44] The victim need not be a virgin prior to the rape in order for a crime to have been committed, a clarification deemed necessary according to the drafters of the Penal Code’s comments.[45] The crime of rape carries a sentence of between five and ten years,[46] which is doubled if the rapist is either: (1) a person with authority over or legal or customary custody of the victim, (2) a civil servant or religious leader, or (3) someone who is helped by one or more people in committing the rape.[47]
- Marital Rape Exemption
The Penal Code outlines the marital rape exemption in Article 297,[48] with reference to the various forms amnesty can take in Article 73[49] and within the comments on Article 296.[50] Article 297 states that a marriage voluntarily entered into between the victim and the guilty party entitles the guilty party to the amnesties available under Article 73[51]which erase the conviction and closes the matter.[52] As another barrier to women who have been raped by their husband, the comments to Article 296 specifically mention that any physical violence committed by the husband against his wife in order to have sexual relations with his wife does not constitute illegal violence and therefore does not satisfy the physical violence element necessary for a rape to have taken place.[53]
- Rape of Minors
The Penal Code prohibits any sexual relations with minors under the age of sixteen.[54]In cases of consensual sex with a minor, the punishment is between ten and fifteen years.[55] In cases of rape of a minor, the punishment is from 15 to 25 years, life imprisonment is a possible sentence if the guilty party is among the class of people enumerated in Article 298.[56] However, the marital exemption outlined above grants amnesty to any individual who would otherwise violate Article 346, even in cases of rape, where his wife is pubescent.[57] Although the legal minimum age for marriage for females is fifteen, early marriage is pervasive with many families marrying off girls as young as twelve or younger.[58] In addition, the combination of the age-based statutory rape law with the legal age of marriage creates a disturbing situation in which a man could be legally married to his wife yet otherwise guilty of statutory rape and still take advantage of the marital rape exemption to avoid any punishment for having sexual intercourse with a minor. As a result of the tolerance of early marriage, it is possible for a man to rape his minor wife with impunity.
[1] 2010 Human Rights Report: Cameroon, U.S. DEP’T OF STATE, 31 (April 8, 2011), http://www.state.gov/documents/organization/160112.pdf.
[2] Parveen Parmar & Pooja Agrawal, Report: Women’s Health Study, Djohong District, Cameroon, INT’L MED. CORPS, 9 (Feb. – Mar. 2010), http://internationalmedicalcorps.org/document.doc?id=87.
[3] 2010 Human Rights Report: Cameroon, U.S. DEP’T OF STATE, 31 (April 8, 2011), http://www.state.gov/documents/organization/160112.pdf
[4] Victorine Biy, Cameroon: Sixteen Days to Change Women’s Lives, ALLAFRICA.COM (Nov. 29, 2011), http://allafrica.com/stories/201111290454.html.
[5] 2010 Human Rights Report: Cameroon, U.S. DEP’T OF STATE, 31 (April 8, 2011), http://www.state.gov/documents/organization/160112.pdf
[6] Cameroon: NGO Report on the Implementation of the ICCPR, CENTRE FOR CIV. & POL. RTS., 48 (June 2010), http://www2.ohchr.org/english/bodies/hrc/docs/ngos/GeED_Cameroon_HRC99.pdf.
[7] ibid
[8] Background Note: Cameroon, U.S. DEP’T OF STATE (Jan. 1, 2012), http://www.state.gov/r/pa/ei/bgn/26431.htm
[9] A national rape survey found that twenty percent of a 38,000 sample of women have been raped, with eighteen percent of rapists reported to be family members. Researchers conducting that survey predict that even the twenty percent reported is not representative of the scope of the problem because of victims’ propensity to remain silent. See Ngala Killian Chimtom, The Reverend Raped Me, INTER PRESS SERVICE NEWS AGENCY (Nov. 4, 2009) http://www.ipsnews.net/news.asp?idnews=49135.
[10] See Parmar & Agreawal
[11] Country Study Report: Cameroon 2007, TRANSPARENCY INTERNATIONAL, 18, (2007) http://www.transparency.org/policy_research/nis/nis_reports_by_country (follow “Report 2007” hyperlink next to “Cameroon” in chart).
[12] ibid
[13] 3 Rep. of the Special Rapporteur on Violence Against Women, Integration of the Human Rights of Women and the Gender Perspective, Common on Human Rights, ¶ 117, 121, U.N. Doc. E/CN.4/2003/75/Add.1 (Feb. 27, 2003) (byRadhikaCoomaraswamy),availableat:http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/a9c6321593428acfc1256cef0038513e/$FILE/G0311304.pdf.
[14] See U.S. DEP’T OF STATE,
[15] Patience Siri Akenji, Constraints in Seeking Justice for Rape Victims in Cameroon: A Situation Analysis at the Ministry of Justice and the Bamenda High Court, GER.-CAMEROON HEALTH/AIDS PROGRAMME, GER. TECH. COOPERATIONFORDEV.11(August2009),http://www.sosviolcameroun.org/librairie/Constraints_in_Seeking_Justice_New2.pdf
[16] ibid
[17] ibid
[18] Eric Kouamo, Central Africa: Rape – Silence and Impunity Persists, RADIO NETH. WORLDWIDE (July 6, 2011), http://allafrica.com/stories/201107061483.html.
[19] CODE PÉNAL [C. PÉN.] 297.
[20] See CENTRE FOR CIV. & POL. RTS.
[21] In Pursuit of Justice: 2011-2012 Progress of the World’s Women, U.N. WOMEN, (2011), http://progress.unwomen.org/pdfs/EN-Report-Progress.pdf. It is important to note, however, that the report does not distinguish between rape laws which might apply to married women but do not do so expressly and laws which expressly include provisions which provide for marriage as a mitigating factor in favor of the rapist. As such, it is unclear the number of countries worldwide which include the same sort of explicit decriminalization of rape within the context of marriage as that which is present in Cameroon’s penal code.
[22] Burundi, Cape Verde, Namibia, Rwanda, South Africa, and Zimbabwe are all identified as having some form of express prohibition on rape within marriage. Id. In Nigeria, the Penal Code specifically prescribes that sexual intercourse by a man with his wife is not rape, and the widespread use of Sharia law in certain provinces results in victims’ testimony carrying little weight. See Bisi Olateru-Olagbegi & Biola Akiyode Afolabi, Actual Women Situation in Nigeria, WOMEN, L. & DEV. IN WEST AFR., (March 17, 2004), http://www.wildaf-ao.org/eng/spip.php?article46. Kenyan law similarly fails to prohibit rape within marriage and the normal rape laws have high evidentiary requirements which are difficult to achieve in marital rape cases. See Marital Rape and its Impacts: A Policy Briefing for Kenyan Members of Parliament, AFR. POPULATION AND HEALTH RES. CENTER, http://www.aphrc.org/insidepage/?articleid=574 (Last visited Mar. 30, 2012). However, Kenya has adopted more specific domestic violence laws and in some jurisdictions has established specialized units within the police to deal with crimes against children and women. See Mary Kinami, Taking on violence against women in Africa, AFR. RENEWAL, Vol. 21 #2 (July 2007), available at: http://www.un.org/ecosocdev/geninfo/afrec/vol21no2/212-violence-aganistwomen.html.
[23] Spousal Rape Laws: 20 Years Later, NAT’L CENTER FOR VICTIMS OF CRIME, (Winter 1999/2000), http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32701.
[24] n 1993, North Carolina changed a provision in its criminal code which initially provided that someone may not be prosecuted for rape where the victim is the alleged rapist’s spouse. The law currently provides, “A person may be prosecuted under this Article whether or not the victim is the person’s legal spouse at the time of the commission of the alleged rape or sexual offense.” N.C. GEN. STAT. §14-27.8 (2011). Previously, it read “A person may not be prosecuted under this Article if the victim is the person’s legal spouse at the time of the commission of the alleged rape or sexual offense.” 1993 N.C. SESS. LAWS 274.
[25] A 1991 decision by the House of Lords eliminated the 250-year old assumption that a woman irrevocably consents to sexual intercourse with her husband. R v. R, [1992] 1 AC 599 (H.L.)(appeal taken from Eng.). Sweden and several other Scandinavian countries adopted legislation in the mid-1960s through 1970s criminalizing marital rape and were among the first to do so.
[26] Charles Manga Fombad, Researching Cameroonian Law, HAUSER GLOBAL L. SCH. PROGRAM, (Feb. 2011), http://www.nyulawglobal.org/Globalex/Cameroon1.htm.
[27] Cameroon’s complex dual legal system stems largely from its diverse colonial past. Initially a Portuguese colony, then taken over by the Germans, the country was divided after World War I between the British (who also controlled neighboring Nigeria) and the French (who also had a number of other colonies in West and Central Africa). For more information on Cameroon’s colonial history, see, e.g. Oben Timothy Mbuagbo, Cameroon: Exploiting Anglophone Identity in State Deconstruction, 8 SOC. IDENTITIES: J. FOR THE STUDY OF RACE, NATION AND CULTURE 431, (2002). England has had a long-standing common law system, whereas France has practiced a civil law tradition for centuries. The University of California at Berkeley School of Law has published a primer on the development of the common law tradition. See The Common Law and Civil Law Traditions, THE REGENTS OF THE U. OF CAL., THE ROBBINS RELIGIOUS AND CIV. L. COLLECTION, SCH. OF L. (BOALT HALL), U. OF CAL. AT BERKELEY, http://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf (Last visited Feb. 27, 2012). An interesting introduction to the development of the civil law system has been prepared by James G. Apple & Robert P. Deyling, A Primer on the Civil-Law System, FED. JUD. CENTER, (1995), http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf.
[28] See Fombad above
[29] ibid
[30] ibid
[31] ibid
[32] ibid
[33] Preamble Cameroon constitution
[34] ibid
[35] ibid
[36] Const,art 1(2)
[37] The Cameroonian Penal Code is published only in French. For the reader’s simplicity, I have translated the relevant statutory language into English for use within the text.
[39] CODE PÉNAL [C. PÉN.] art. 298.
[40] CODE PÉNAL [C. PÉN.] art. 296; CODE PÉNAL [C. PÉN.] art. 298; CODE PÉNAL [C. PÉN.] art. 346
[41] CODE PÉNAL [C. PÉN.] art. 296.
[42] CODE PENAL [C. PEN.] art. C296
[43]CODE PENAL [C. PEN.] art. C296(2).
[44] Ibid
[45] CODE PÉNAL [C. PÉN.] art. C296.
[46] 66 CODE PÉNAL [C. PÉN.] art. 296.
[47] CODE PENAL [C. PEN.] art. 298.
[48] CODE PENAL [C. PEN.] art. 297
[49] CODE PENAL [C. PEN.] art. 73.
[50] CODE PENAL [C. PEN.] art. C296 (3).
[51] CODE PENAL [C. PEN.] art. 297.
[52] CODE PÉNAL [C. PÉN.] art. 73(1).
[53] CODE PÉNAL [C. PÉN.] art. C296(3).
[54] CODE PÉNAL [C. PÉN.] art. 346.
[55] ibid
[56] ibid
[57] CODE PENAL [C. PEN.] art. 297.
[58] See SOC. INSTITUTIONS & GENDER INDEX, OECD DEVELOPMENT. CENTRE, supra note 6 at 1. Also, recent studies have established that girls are reaching puberty as early as nine years old, well under the legal age for marriage. See Richard Alleyne, Girls Now Reaching Puberty Before 10 – A Year Sooner Than 20 Years Ago, THE TELEGRAPH, (June 13, 2010), http://www.telegraph.co.uk/health/healthnews/7824699/Girls-nowreaching-puberty-before-10-a-year-sooner-than-20-years-ago.html.