Criminalising small houses to deter GBV: Is there sufficient moral courage? 

Source: Criminalising small houses to deter GBV: Is there sufficient moral courage? – Sunday News December 10, 2017

Delta Milayo Ndou
SHOULD the law intervene to deter and punish married men who choose to have small houses?

Last week, Kuwadzana MP, Hon Nelson Chamisa set the cat among the pigeons when he suggested that it be criminalised for someone who is married (presumably under Chapter 5:11) to have a girlfriend.

The temporary Speaker called Mr Chamisa to order and implied that he had digressed by posing the question. Mr Chamisa maintained that his question was relevant because “it is to do with the offences that are related to gender-based violence”. I am unsure why the temporary Speaker needed further elaboration as there is no doubt that infidelity is a leading and recurring cause of intimate-partner violence.

Mr Chamisa’s question is a powder keg in the context of a patriarchal value system, which stands ready to defend the male privilege to enjoy promiscuity-without-consequence while turning a blind eye to the trail of disaster left in its wake. Perhaps now is the time to cause patriarchal offence in the name of every woman, man and child who has been maimed, violated, traumatised, scarred or killed by the unintended (but foreseeable) consequences of marital infidelity.

Existing strategies that seek to mitigate gender-based violence while skirting around the impact of infidelity are inadequate. Although legislating morality is a slippery slope we must not shy away from discussing “the offences that are related to gender-based violence”, chief of among them being infidelity.

I will narrow this commentary to married men and more specifically to men who are married under Chapter 5:11 of the Marriage Act because the legally binding terms and conditions of their union, are more clearly delineated. In doing so, I do not intend to trivialise registered or unregistered customary law marriage or any intimate partnership that might not conform to the statutory law measure of recognised marital union. In narrowing my focus, I also do not seek to suggest that women do not commit infidelity because some women do. Owing to such a narrowed focus, I anticipate that I will inevitably fail to capture every shade of nuance and account for every form of complexity the issue entails. Nevertheless, I hope there will be points that intersect and apply to other forms of marital unions and all types of intimate partner relationships.

I think there must be an appreciation of the inherent violence of infidelity in order to genuinely engage with the question of “offences that are related to gender- based violence”. Society cannot continue to ignore behaviours that trigger gender-based violence simply because those behaviours are so commonplace as to be regarded as the inevitable norm. When a married man chooses to initiate a new relationship with another woman, he does so knowing it will require him to exert some degree of physical, psychological, mental or emotional violence upon his wife. He can only have the affair at the expense of his wife and by violating his marital contract with her. Behind infidelity there lies a latent violent intent, premeditation and willingness to inflict harm as well as a morally objectionable absence of remorse.

It is not only that a married man is fully aware of the violent measures he must take (against his wife) to initiate and maintain an extramarital affair but that he is willing to take those measures — and consequences be damned. Should our laws continue to ignore such wilful violence — the violence of infidelity?

I imagine it should be possible to hold someone accountable when their actions inflict harm, especially where the harmful (and ostensibly unintended) consequences are reasonably foreseeable. Relying on simplism, one of the reasons laws are crafted is to protect. In that sense, criminalising certain conducting can be a protective measure to deter would-be offenders from committing offenses that might visit harm on others. The problem with gender-based violence is that some laws intended to prohibit behaviours within intimate partner relationships risk intruding upon personal freedoms in ways that could undermine personal autonomy. Also, enforcing some laws can prove difficult where there is the assumption of agency, that is, individuals choose whom to love, marry, reject, stay with or divorce. There is always the assumption that a victim of intimate partner conflict has options (to extricate themselves) that do not require or attract the law’s extremist intervention. For instance, would it make sense to go to all the trouble of enacting a law to criminalise married men who choose to have small houses if the injured party (that is the wife) has the option to divorce — itself a legal avenue that can bring her relief? Sometimes laws are crafted anticipating the agency of individuals who have and can exercise certain freedoms. To what extent must the law be instrumentalised in arbitrating disharmony in intimate partner relationships?

If certain conduct leads to certain foreseeable outcomes such as gender-based violence, is it unreasonable to use the law to prohibit conduct that leads “to the offences that are related to gender-based violence”? Must the law be used to protect marriages by prohibiting extramarital affairs, on the basis that they often lead to gender-based violence? More importantly, would our legislators dare to offend patriarchy in such a manner? In countries like the United States of America, intimate partner violence is considered to be a serious, preventable public health problem that describes physical violence, sexual violence and psychological aggression (including coercive acts) by a current or former intimate partner. In Zimbabwe’s patriarchal context, such behaviours are not culturally considered to be a “public problem” of any sort. Rather, internalised patriarchal values have normalised and obscured the inherent violence of intimate partner violations including infidelity. Hence, infidelity, especially on the part of men, is framed as inevitable, lasting through the ages and as sanctioned by norms such as polygamy.

I think Mr Chamisa’s question in the August house is one that many men wouldn’t touch with a ten-foot pole because their male privilege would be threatened. The question invites the discomfort of collective moral scrutiny. It is the kind of question that rouses sleeping dogs from their slumber, lifts carpets to reveal what has been swept beneath and rattles skeletons in deeply personal closets. It is also a question that probably many within the August house (and beyond it) have no moral ground to engage with, without self-incrimination. Prevailing wisdom holds that for the majority of married men, having a small house is a reality and for those who have none, it is an expected eventuality. So to raise the question of criminalising small houses in order to address gender-based violence (even where the causality is hard to dispute) would be a tall order because those who have small houses do not wish to condemn themselves or entertain a discourse that might hurt their male privilege. Mr Chamisa’s question requires the discomfort of reflecting on how personal choices and patriarchal values morph into national murder statistics fuelled by infidelity-driven gender-based and domestic conflicts.

As we mark International Human Rights Day and the last day of the 16 Days of Activism against Gender-Based Violence; I hope a year from today, our legislators will have individually and collectively found the moral courage to move the conversation (started by Chamisa) forward.