Why adultery is criminalised

Before the adoption of the new penal code, there was a discourse on adultery and whether it should be criminalised or not.

The debate attracted a mixed reaction, especially among the elite, where some were in support while others against.

This became a heated debate in parliament during the debate on the new law. Subsequently, the bill was signed into the law, and adultery was criminalised, among other things.

Before this column delves deeper into this subject, it is quite important to note that this analysis isn’t intending to discuss the merits of a petition recently filed in the Supreme Court.

Article 136 of Law nº 68/2018 of 30/08/2018 determining offences and penalties in general provides that:

“Any spouse who has sexual intercourse with a person other than his/her spouse, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of not less than six (6) months and not more than one (1) year.

The prosecution of adultery is initiated only upon complaint of the offended spouse. In that case, the prosecution is initiated against the accused spouse and the co-offender.

The offended spouse may at any stage of the procedure request that the proceedings be terminated when he/she retracts and withdraws the complaint.

However, if the matter is already brought before court or if a decision thereon has been taken, retraction does not stop the consideration of the case or the execution of the judgment.

The judge considers the case after which he/she can accept or refuse such a retraction upon justification.

If a judge accepts the retraction of the offended spouse, stopping the proceedings or the execution of the judgment has effects on the co-offender.”

According to paragraph one of the foregoing provision, the following conclusions may be drawn concerning the offence of adultery;

Unlike in other countries, in Rwanda, there’s no discriminatory punishment for adultery.

A husband or wife who commits an offence is liable to the same penalty, namely a term of imprisonment of between six months and one year.

Besides, the prescribed penalty applies when a man or woman who perpetrates the offence is married. It constitutes an offence if a married man or woman involves in a marital infidelity with another man or woman, whether married or unmarried. It is, equally, referred to as an extramarital affair.

Upon complaint raised by the offended spouse, the prosecution initiates the case against the accused spouse and the co-offender. An interesting question is: who bears the burden or standard of proof between the offended spouse and the prosecution?

As a matter of principle, in a criminal trial, the prosecution has the burden of proving that the defendant committed an offence. If the Prosecution is unable to adduce evidence to prove the offence of adultery, the case may be dropped perhaps due to the fact that the prosecution failed to prove it beyond reasonable doubt.

However, as a matter of fact, the main burden lies on the offended spouse to provide such incontrovertible evidence given that this is an offence naturally committed in a private area.

Therefore, the complainant bears much more burden to produce plausible evidence. If the complainant is short of producing such evidence, it renders the case seem quite defective. 

Furthermore, the complainant may decide to withdraw the case at whatever level of the proceedings, though the judge has the discretionary powers to decide otherwise.

In my view, criminalizing adultery is complementary to the recognition of a monogamous marriage—between a man and a woman as set out in Article 17, paragraph 2, of the Constitution of the Republic of Rwanda of 2003 revised in 2015.

This provision recognises only a marital union of a man and a woman. So, marital infidelity is a terrible vice to the marital union. Fidelity in marriage brings a sense peace, harmony and happiness.

Central to have an offence of adultery is to keep morality and sanctity of marriage. Also, it is in the interest of upholding the cultural values. Culture is a broad concept encompassing all forms of conduct, organization and human behaviour within society, including family, language, religion, philosophy, law, government, art and sport. Cultural diversity occurs when culture is expressed and develops.

Undoubtedly, adultery is not good as it is one of the major causes of conflict as well as loss of income in many families. Moreover, Article 218, paragraph 1, of Law nº32/2016 of 28/08/2016 governing persons and family, adultery is a legal ground for divorce. Statistically, the biggest number of marriage breakdowns and acrimonious relationships in families emanate from marital infidelity. Sadly, today speedy divorce has become adequate remedies to the wronged spouse.

Perhaps in the interest of protecting the marital fidelity, which is a gender neutral approach, the legislation determining offences and penalties, as noted elsewhere, similarly prescribes and punishes sexual violence against a spouse, commonly known as marital rape,  concubinage (where a married man or woman lives with another woman or man is not legally married to), desertion of the marital home, bigamy (where a married man or woman wife enters into another marriage contract while the previous one is still valid).

The writer is a law expert.

The views expressed in this article are of the author.