Sat | Jan 16, 2021

Of marriage and rape

Published:Thursday | July 13, 2017 | 12:00 AMCecelia Campbell Livingston

The husband should fulfil his marital duty to his wife, and likewise the wife to her husband. The wife does not have authority over her own body but yields it to her husband. In the same way, the husband does not have authority over his own body but yields it to his wife. - 1 Corinthians 7:3-4

For weeks, there has been a raging debate on the issue of marital rape. The Church has its own stance, and lobbies hold another. It seems that the two will never meet, even while the parliamentary committee reviews the country's Sexual Offences Act, with a closer examination on the issue of marital rape.

The Church powers its arguments on biblical verses such as the "man has power over the woman's body and she his".

Dr Wayne West, chairman of Jamaica Coalition for a Healthy Society and member of the Mona Open Bible Church, weighed in on the topic.

For him, the issue of marital rape and the legislation related to marital rape is one of worldview - the lens through which one sees the world and responds to it.

"We would all agree that forcing a partner to be intimate against the person's will is wrong, so that is not the issue. The issue is, 'How should the State deal with that wrong?', and that will depend on the worldview within which the State is forming its laws," West said, pointing out that this will define both the institution of marriage and the related legislation.

"So the first question to ask is, 'With which worldview would we like the Jamaican State to formulate its laws?' because to repeat this will define the nature of the institution of marriage in Jamaica.

The choices before us are the Christian worldview and the atheist/secular world. The definitions of marriage in these worldviews are radically different and the legislation related to marriage are similarly radically different," he said.

Reminding that there are two equal parties in marriage, West said conflicts can arise, and so, too, the desire to be vindictive by either party.

"It is not unreasonable to contemplate an angry wife wanting to wield a charge of rape. It is not unreasonable to contemplate a husband using force to exact sex. Because of the presumption of consent, the court will need certainty and accuracy as to the revocation of consent in either scenario, for a just outcome for both parties. The provisions of Section 5 (of the Sexual Offences Act) have already provided the certainty and accuracy needed in these cases," he said.

Section 5 states that rape can be committed in a marriage if the couple is separated, among other circumstances.

West said those who argue that these circumstances are limiting and do not anticipate non-consensual sex in an otherwise functioning marriage, suggest a closer examination of Section 5 (3a) on separation within the meaning of the Matrimonial Causes Act.

"The Matrimonial Causes Act defines 'separation' as taking place even where 'cohabitation was brought to an end by the action or conduct of one only of the parties'. Section 6(1) . There can also be separation even if the spouses continue to reside in the same residence or that either party has rendered some household services to the other," he shared.

For those who are of the opinion that the woman has no control over her body once she is married, West said if a man forces his wife to have sexual intercourse, she can resort to the courts under Section 4 of the Domestic Violence Act for a protection order. Where he breaches that order, then he can be charged with rape, pursuant to Section 5(3)(d) of the Sexual Offences Act.

Addressing the biblical worldview that marriage is a covenant of love which makes two one, he said the covenant presumes one flesh and love between the two who have become one.

"The concept of rape, therefore, becomes challenging if the two are one, but this does not exclude the concept of abuse and wrongdoing which will require punishment," he points out.

West said the Church is careful not to use the word 'rape' for all instances of abuse because, by definition, rape implies that there are two, not one.

He said the use of the term 'rape' is, therefore, a surrender of the Christian definition of marriage.

"As people, we are free to surrender that definition, but as I have said, once the definition has been changed, the structure, etc., of marriage will be radically altered. The issue of marital rape is a well-crafted political strategy being used by atheist/secular political movements to have Jamaicans surrender the Christian worldview for law," he opines.