‘A Great Loss to Women’: Uganda Says Consent Cannot Be Withdrawn During Sex

A heavily criticised piece of legislation has also stepped up the criminalisation of gay sex.
May 6, 2021, 3:12pm
Protest against the amount and handling of police investigations into murders and kidnappings of women in Kampala on June 5.
Protest against the amount and handling of police investigations into murders and kidnappings of women in Kampala on June 5. Photo SUMY SADURNI/AFP via Getty Images

On Monday, Uganda’s parliament passed a Sexual Offences Bill that the government claims will prevent sexual violence and protect victims. The wide-ranging bill establishes a national sex offenders register and legislates against an array of crimes, from workplace harassment to child marriage.

However, a clause recognising that women can withdraw consent before or during a sexual act was removed from the final version of the bill, with MPs failing to agree on a definition of consent. Another clause criminalising marital rape was dropped back in February.

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The bill also puts revenge porn victims at further risk of arrest, with a crackdown on the “circulation of pornographic” material, and introduces three-year prison sentences for those found to be making “false allegations” of a sexual offence.

“Consent is given at the stage of take-off,” Member of Parliament Thomas Tayebwam said during a debate on the bill on Monday. “We are on a plane, we have taken off... and you say, stop, stop, stop! Now, what do you want the pilot to do? To crash the plane? Aren’t you causing trouble?” Tayebwam later went on to argue that consent is agreed after “you accept to enter my bedroom or hotel room”. 

Monicah Amoding, the MP who proposed the bill, described the removal of the consent clause by the parliamentary committee as “a great loss for women”, but also claimed it will “help to prevent sexual violence because we are enhancing punishment on most of the offences”, such as the protection of survivors during trial.

The removal of the consent clause has sparked outrage from women’s groups and survivors of sexual violence across the East African country.

Anita*, a 30-year-old from Western Uganda, is a survivor of sexual violence. When she started dating a man she met in 2019, she told him about her latex allergy. She said that if they had sex it would be difficult to use condoms, meaning they would need to do HIV tests first. He agreed.

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A few months later, on New Year’s Eve, they planned to spend their first night together. “I went to meet him in his town,” Anita – whose name has been changed to protect her identity – recounted. “We got dinner first, then walked home. We kept passing by pharmacies and hospitals, and I was reminding him that we needed to test.”

The man didn’t stop anywhere, but as he didn’t object to her requests for the test Anita figured he either had a test kit at home or was willing not to have sex that night. “I made that condition clear even before I travelled to meet him,” she added. Back at his place, he didn’t have any tests – so Anita told him that they couldn’t have sex, and he agreed. They went to sleep, but in the middle of the night Anita was woken up.

“The monster is on top of me, fighting me. I was crying and terrified, and he wasn’t listening,” she told VICE World News, adding that the experience has “haunted her”. She kept the messages he sent her apologising, in case she takes her case forward one day.

“This bill, this bill, I don’t understand,” she said. “If I didn’t have my evidence on the phone, who would ever believe that I didn’t give consent?”

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The bill comes just weeks after the release of Uganda’s 2020 crime report, which saw domestic violence rise by 29 percent and statutory rape increase by 3.8 percent amid a national lockdown. Among the cases not investigated, despite police having enough evidence to prosecute, include 3,331 statutory rape (locally known as defilement) cases and 335 rape cases.

The report also follows a VICE World News investigation into police mismanagement of gender-based violence cases in Uganda. Over half of the survivors VICE World News spoke to said they experienced corrupt handling of their cases, and many felt they were not being taken seriously or were victim-blamed when they went to the police. In some cases, survivors were criminalised by their perpetrators, who used money and influence to have them arrested on trumped-up charges. Some activists fear this will only worsen following the new bill’s criminalisation of “false allegations”.

“You cannot put a clause which criminalises the reporting of sexual abuse in a society where reporting is so low and so many hurdles to reporting exist,” said Rosebell Kagumire, editor of African Feminism. “We live in a society that is very gender imbalanced, that is classist. Whoever has money can negotiate the system... So who is going to benefit from that clause?”

Any protections that the bill does legislate for – such as the sex offenders register – have little meaning when the right to withdraw consent has been taken away, Kagumire continued: “Once you remove consent, what are you debating? What are you legislating? Because sexual violence, at the heart of it, is about consent.”

As well as weakening consent protections, the bill also features amendments reinforcing colonial-era laws that criminalise gay sex and sex work.

The Sexual Offences Bill bans the penetration of another person’s anus, and sexual acts between people of the same gender. “It seeks to widen the criminalisation of same-gender sexual relations to expressly cover women who have sex with women, which was not in the Penal Code Act,” said Clare Byarugaba, a LGBTQ rights activist working with Chapter Four Uganda. “The clause provides more opportunities for the promotion of homophobia, anti-gay vigilantism and further institutional discrimination and exclusion.”

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Adrian Jjuuko, Executive Director of the Human Rights Awareness and Promotion Forum, said that as the new law specifies penetration, the practice of forced anal examinations upon arrest is likely to increase. One relative step in the right direction, Jjuuko added, was the “reduction of the sentence to ten years from life imprisonment”.

Shira Natenda, a sex worker rights activist, told VICE World News that the bill has “exacerbated” what is already a challenging environment for sex workers. Natenda said the new bill’s definition of sex work as “sexual exploitation” is a “threat to all those engaged in the act willingly, because it further marginalises sex workers and paves way for arbitrary arrests”.

“We are already socially, religiously and culturally stigmatised,” Natenda added. “The cease and desist order from the Sexual Offences Bill is the final nail. As sex worker activists and allies, we need to appeal if this bill is signed by the president.”

When asked about the provisions against same-sex acts and sex work in the bill, Amoding, the MP who originally tabled the bill, said these issues need “continuous advocacy” and that “laws change. Values change. Society changes.”

“I’m outraged, but I’m not surprised. A state that beats up and kidnaps people cannot be a state that can guarantee women’s rights, or protect children or sexual minorities,” said Kagumire, referring to the widespread abductions which occurred in Uganda around the election in January. “We are living in a very violent society, and that violence is from the top to the bottom.”