By Dionne Jackson Miller
What should we make of the (renewed) protests against the proposal to criminalise rape in all circumstances, including those within a marriage? The protests, or perhaps worse, the snickering, trivialize what is one of the most important issues facing women all across the world, that of domestic violence.
Rape is an act of violence whether it takes place within or without the marital relationship. Section 3 (1) of the Sexual Offences Act states that “A man commits the offence of rape if he has sexual intercourse with a woman--
(a) without the woman's consent; and
(b) knowing that the woman does not consent to sexual intercourse or recklessly not caring whether the woman consents or not.”
Forget for a moment that deliberately non-gender-neutral nature of the provision. That’s for another day. Look at that phrase instead: sexual intercourse without consent. Should it matter then that the intercourse in question took place inside a marriage? Is there a reason we think the criminal law should not protect married women?
The global statistics are – as always – stark and worrying. UN Women reports that a 2013 global review of available data indicates that “35 per cent of women worldwide have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence… some national violence studies show that up to 70 per cent of women have experienced physical and/or sexual violence in their lifetime from an intimate partner.”
In addition, UN Women states that nearly half of all women killed in 2012 died at the hands of intimate partners or family members. The 1993 UN Declaration on the Elimination of Violence against Women declared that violence against women included marital rape.
However, a married woman in Jamaica can only complain that she has been raped by her husband in very limited circumstances. According to section 5 of the Sexual Offences Act, those circumstances are if the husband and wife have separated and are living separately, if a separation agreement is in place, if divorce proceedings have been instituted, if there is already a court order in place against the man for non-cohabitation, non-molestation, or ouster from the matrimonial home for the protection of the wife, or if the husband knows that he is suffering from a sexual transmitted disease.
The legal prohibition against rape being declared a crime in the context of marriage flowed from the famous English legal scholar Sir Matthew Hale’s writings in 1736 that:
"But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."
In England, the courts led the way on this issue when in 1992 the House of Lords declared in the landmark case of R v R, in a unanimous decision by a five-member panel with one written judgment, that there was no exemption for marital rape. In the words of Lord Keith, “The fact is that it is clearly unlawful to have sexual intercourse with any woman without her consent… in modern times the supposed marital exemption in rape forms no part of the law of England.”
Fast forward to Jamaica in 2014 where there remain obstacles in the way of a woman seeking to report her husband for rape. This is despite the matter having been considered by legislators as recently as 2009 when the Sexual Offences Act was passed.
In 2014, more than ever, the voices of protest against criminalization of marital rape ring hollow. We do not hesitate to criminalise rape because a woman might falsely accuse her partner, acquaintance or a passing stranger. Concerns that a disgruntled wife might frivolously and mendaciously cry rape against her husband will stand to be tested as all other accusations of rape are tested, by investigations and, if necessary, by the weight of evidence in a court of law. Consider what is involved in an accusation of rape - a woman must make a formal report to the authorities. She will then have to maintain her accusation through the investigation by the police, and if it comes to that, through what is sure to be rigorous and vigorous interrogation by lawyers in a court of law. She will have to maintain her accusation, knowing that it could put her husband, probably the father of her children, in jail, expose him to public censure and, in all probability, ruin his life.
If a husband is really worried that his wife may report him for rape, I suggest that it is not the criminalisation of the offence that will damage their relationship. That relationship is already damaged. In the meantime, society has a responsibility to protect citizens from violent attack. The fact that they are married, and that the violence is perpetrated by a spouse should be no bar to claiming the protection of the law.
Dionne Jackson Miller hosts the radio current affairs programme "Beyond The Headlines" on RJR 94 FM and "All Angles" on TVJ. An attorney at law, she is pursuing a Master of Laws degree at the University of London, and has tutored in Constitutional Law, and Media Law and Ethics at the University of the West Indies. She’s the current president of the Press Association of Jamaica.