Marital Rape is defined as the act of “sexual intercourse” with one’s spouse without the spouse’s consent. Generally speaking it is viewed as a form of domestic violence and /or abuse. In the Bahamas there is no law which criminalizes non consensual sexual intercourse between married persons. Single women and men thus enjoy a legislative protection which is not enjoyed by married women or for that matter married men. Outside the boundaries of recognized permissible grounds for making a complaint against a spouse for non sexual violence (e.g. Batteries and Assaults) the Law provides no such protection, in the Matrimonial Union, for non consensual sexual intercourse. Thus a woman is not competent to give evidence against her husband for an allegation of rape. Alternatively, she is competent for an allegation made of physical violence.The reason for this anomaly is historical and important. It is fair to say that the Judaeo-Christian tradition which has informed our Jurisprudence recognizes and still enforces a very old and time honored Biblical idea that a man or a woman can not form the requisite intent to rape his or her spouse. It is a legal fiction steeped in the Common Law tradition which asserts the unity of the Matrimonial Union. Thus it is legally impossible to rape a spouse as her or his body is “judicially “considered to be at one with his / her spouse for sexual activity”. These views hail from the English Common Law. Sir Matthew Hale (1609-1676) stated the position of the Common Law in 1736 when he said
“A husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself in this kind to her husband which she cannot retract”.
It is difficult in the Bahamas to determine and gauge the prevalence of this social problem. Public discussion of this vexing issue is marred to a large extent by taboos associated with marriage one of which is that men can’t rape their wives as the “union” is ordained by God. There is a wealth of empirical evidence and anecdotal commentary which suggests that Marital Rape as against Rape is a pervasive challenge. Rape in marriage therefore offers a “marital exemption” for behavior which would otherwise be unlawful. Is it time to acknowledge the elephant in the room and reform this glaring anomaly and all of its attendant contradictions?
The United Nations has charged by its recent visit to the Bahamas that the country is out of step with international commitments to criminalize all forms of marital rape. In 1993 the Bahamas ratified the Convention on the Elimination of Discrimination against Women. Recommendation 35 therein entreated member states to ensure that the definition of sexual crime including date and acquaintance rape be based, simply, on the lack of freely given consent. In 2009 an attempt was made to legislate what amounted to a Marital Rape Bill. This attempt failed in large part because of the convergence of influential Conservative church views, widely expressed, that “men lead “in the marriage and they have a right to dominate the female. The present Attorney General, Mr. Carl Bethel, has made his position clear. He opines:
“Marital Rape in the context of a subsisting marriage will now be criminalized as “Aggravated Spousal Sexual Abuse”.
It is our view that this is a step in the right direction. The question left to be considered is what may be some of the problems to be realized for Crown Prosecutors to establish the elements (the Actus Reus and Men’s Rea) of what is clearly a definition which begs so many additional questions. Why for example has the traditional standard of consent in rape complaints being substituted for the new and confusing requirement that we prove “Aggravated Spousal Sexual Abuse.” The other challenge will be to remember that this new legal dispensation will, should it materialize, be taxed to police the rape of men in the Marital Union.
The lid is now off in the Bahamas and back to the bottle this genie will not return. Any attempt to extend greater protection for women against violence in Marriage is an improvement of the Status Quo. We dare suggest that this should not be an exercise in futility which replaces the status quo with Laws which prove difficult to prosecute.