Thu | Dec 8, 2016

Should husbands require wives to sign sexual consent forms?

Published:Monday | October 20, 2014 | 12:00 AM
The happy couple shows off their wedding rings.

What if there should come a time when husbands will have to require their wives to sign the Lambert Form before engaging in sexual intercourse?

The form, which would be one prescribed by law, would require that the sexual encounter that is about to take place has been consented to by the wife. The form may have fields for time and place and even duration.

Justice Minister, Senator Mark Golding, has made it clear that such sex permission form will not be introduced under his watch and has suggested that Lambert Brown, also a government senator, develops his own form if he feels that changing the law relating to marital rape would be a dangerous thing.

When the Sistren Theatre group appeared before a joint select committee reviewing the Sexual Offences Act last Wednesday, they begged the committee to review the law relating to marital rape.

Not only did they point out that Jamaica was in breach of the Convention on the Elimination of All Forms of Discrimination against Women, but they said the current law is unjust to married women. Under the law, a wife can only be raped by her husband if he has an infectious disease which he wilfully tried to pass on, if there is a divorce proceeding, or if there is a legal separation.

discrimination against women defined

The Convention, which Jamaica ratified in 1989, defines discrimination against women as "... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."

By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including: to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women.

Jamaica is also required, under the Convention to establish tribunals and other public institutions to ensure the effective protection of women against discrimination, and to ensure elimination of all acts of discrimination against women by persons, organisations or enterprises.

The Sistren group argues that the response 'no', irrespective of whether the woman is married should be taken as 'no'. They said if a husband fails to accept 'no' he should be charged with rape.

Golding, Olivia Grange, Marisa Dalrymple Philibert and Alexander Williams have all lined up in favour of the change. But Brown, with very good reason, is scared of its implications, even as he asserts that he is "against abusive relationships in or out of marriage".

Statute of limitation

Noting that there is no statute of limitation on a crime in Jamaica, Brown said changing the rules opens the door for abuse. This is because a criminal charge can be brought against any person for any crime committed in the past.

"To subject every sexual activity to a potential future claim of rape is not something you will get me endorsing, and I don't care how many conventions we have signed," Brown said.

"It's a dangerous road," he added.

Brown's fears, I believe, should not be overlooked. A man may be driven to support the ladies of the night than risk a claim of marital rape, especially if he is in a relationship that frequently has both good and bad days. It may give rise to adulterers and put marriages on a powder keg, since vengeful wives could use rape, in the absence of the Lambert form, against a husband.

This, however, is not to downplay the real issue of married women being subjected to abuse of sexual and other nature and having little or no legal protection. The law as it is now is unfair and should be amended to ensure that the 'nos' of wives are respected.

Brown's point about the possibility of abuse should not be dismissed. His consent form is a worthless idea that should not be elevated beyond the joke he must have attempted.

But certainly the country should seriously consider whether it is not time to put a statutory limit for crimes. If the state is unable to name a suspect and put a prima facie case before the courts within a certain period, it should be considered unfair to proceed with prosecution thereafter.

The imposition of statutory limits would not cure the marital rape 'gotcha' problem that comes with a vengeful wife. I do hope the committee spends more time considering this issue.

On the one hand, they should strive for equality in the way women who are the subject of sex crimes are treated, but they must balance that with consideration for the protection of the institution of marriage, and take into consideration the likelihood of abuse by vengeful women lying through their teeth.

The reality is that we live in a society where when a man is accused of a sexual crime, even if he is acquitted, there is a DNA effect. And in this same society, women are made sex objects, and marriage has rendered them defenceless. A practical, fair and balanced solution is needed.