Stop this confusion about marital rape

Tenesha Myrie, Guest Columnist

Let us examine the facts regarding marital rape. Prior to the Sexual Offences Act, 2009 (SOA), Jamaica's law governing rape was primarily found in the Offences Against the Person Act, 1864 (OPA) and the common law.

The OPA made it a felony to commit the "crime of rape", but did not provide a definition for rape. Therefore, judges and lawyers had to rely on the common-law definition which, for a long time, accepted the 1736 publication of Chief Justice Hale's pronouncement that a husband could not be guilty of raping his wife because, upon marriage, she gave her irretractable consent to have sexual intercourse. From 1949 to 1990, the common law developed by recognising that a husband could be prosecuted for the rape of his wife in certain cir-cumstances such as where there was non-cohabitation or a petition for divorce.

MARRIAGE DOES NOT MEAN IRREVOCABLE CONSENT

In 1991, the common-law definition of rape changed by virtue of the English House of Lords decision in R v R. The court confirmed that Hale's proposition has no place in modern times. Marriage is to be viewed as a partnership between husband and wife who were equals in the eyes of the law.

It is anachronistic to assume that by virtue of being married, a woman had irrevocably given her consent to having sexual intercourse. The court made it clear that where a statute speaks of the offence of rape, it must be interpreted to include non-consensual sexual intercourse by a husband with his wife.

So from 1991, the law in Jamaica was that where a husband had sexual intercourse with his wife without her consent, he committed the offence of rape. No conditions required.

THE 2009 STEP BACK

In 2009, the SOA took away this protection. It made a step back to the previous common-law position by including in Section 5 the outdated 1949-1990 exemptions for husbands. This step back matters because of the following facts:

1) Marital rape is a form of sexual violence and a form of violence against women. This is acknow-ledged at common law, in progressive modern statutes and under international law. See, for example, the United Nations Decla-ration on the Elimination of Violence Against Women 1993, Article 2.

2) Marital rape and all other forms of sexual violence constitute a violation of women's human rights such as the right to equal protection of the law, liberty and security of the person and freedom from discrimination.

3) Jamaica is in breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979 and Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, 1994, which it ratified in 1984 and 2005, respectively. In 2012, women's-rights activists informed the CEDAW Committee of this and the CEDAW Committee urged Jamaica to "amend the Sexual Offences Act, 2009 with a view to criminalising all marital rape, with no restrictive conditions, within a clear time frame."

4) Anomalies in our law exist so that: (i) common-law wives have full protection of the law from rape while wives do not; and (ii) where a husband forces his wife to have sexual intercourse while beating her, the husband can be prosecuted for the beating, but not for the forced sexual intercourse.

GOING FORWARD

Marriage does not mean irrevocable consent to sexual intercourse. As a people, let us not use the notions of privacy and sanctity of marriage to condone sexual violence. Join our voices in calling for equal protection for all women. Let us not deny that rape is rape.

Tenesha Myrie, an attorney-at-law, is a member of both the Legal Reform Committee and Woman Inc. Email feedback to columns@gleanerjm.com and tpfmyrie@yahoo.com.