Do you take this man to be your lawfully wedded husband, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, [for consent or rape] in sickness and health, to love and to cherish, till death do you part?
If you were paying attention to the recital of these vows above, you would notice a vow not traditionally promised on one’s wedding day. However, this has been an ever present reality for many women after they sign their marriage certificate.
Through the opinions of Sir Matthew Hale in 1800, marital rape has been seen as a redundant principle as “…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.” Due to this archaic principle, many wives have suffered in silence due to being robbed of their sexual autonomy once signing their marriage certificate.
This is supported by Jamaican legislation in section 5 of the Sexual Offences Act which prescribes that there can be no marital rape unless it occurs under five specific circumstances:
- Spouses must be separated and living separately and apart;
- Where there is a separation agreement between the two spouses;
- Where either party has initiated divorce proceedings;
- Where an order has been made against the husband for the protection of his wife;
- Where the husband knows that he is suffering from a sexually transmitted infection (STI);
This therefore means that the only way for a wife to bring a claim of rape against her husband is if the marriage has all but deteriorated or if he is a known philanderer who has contracted an STI and does nothing to cure it. Surely this cannot be 2014! We live in a time where a woman’s sexual rights has now been clearly defined through law and society and sexual rights are no longer a sensational issue. Are you telling me that the law would allow marriage to become an avenue of sexual exploitation against women?
Do not misunderstand me. I do believe in the sanctity and relevance of marriage in today’s society. It may never be seen as obsolete as it serves a beneficial purpose for spouses. However, the fact that a woman could sign away her rights of sexual autonomy and her freedom to refuse sexual intercourse goes against equality and the institution of marriage. Generally, a woman would not willingly choose to be sexually exploited upon marriage to the love of her life.
British courts regarded this in 1992 and in R v R, they rendered void the doctrine that a woman could not be raped in the confines of a marriage. Jamaica, by this time, had ratified the ‘classical’ belief through legislation. In 2009, there was a glimmer of hope. The Sexual Offences Act was under revision and the chance to adapt the legislation to common law position on marital rape became a possibility. The act was updated to include that men and women who conducted sexual offences against children should be criminalized but marital rape was evidently excluded from the revision.
On October 16, 2014, the Sistren Theatre Collective sought to rectify this gross wrong at a joint select committee reviewing the Sexual Offences Act. Although their view was shared by the Justice Minister Mark Golding, Senator Lambert Brown dissented with his counterparts. Believing that the law would invade the privacy of a matrimonial union, he posited that changing the tenets under which marital rape will occur would radically alter the foundation of marriage. He went further to add that a husbands’ doubt of consent from his wife may prompt him to engage in sexual intercourse where consent is ‘sure’. Senator Delroy Chuck concurred that trying marital rape will bring to the fore intimate information about the union. This, he believes, will make an already broken marriage irreparable.
Those concepts posited have been refuted through law and practice. As expressed by Litrow Hickson, a member of the Sistren Theatre Collective, an act practised in the privacy of ones’ home does not negate its criminality (such as Domestic Violence). Additionally, consent is a necessity regardless of whether intercourse is being utilized for economic gain. Bringing a case of rape before the court is already an invasion of privacy as women have had to place their entire sexual history and interactions on the stand for excessive scrutiny. However, many women still come forward knowing that risk as they value their sexual autonomy. Married women should not be muzzled and should have their day before court should they want it.
The UN Committee on the Elimination of Discrimination Against Women posits that gender-based violence is an act of discrimination and stymies gender equality. Allowing for marital rape to continue will also cause the women of tomorrow to apprehend fear when they consider the limitation of their sexual autonomy and equality in marriage.
Even if the law is subsequently revised and adapts the common law position of R v R, the sociological impact of centuries of gender bias in marriage will still have to be reformed. The Girl Declaration, heralded by the Girl Engagement Advisory Board, is one such initiative that seeks to remove stigma against girls and women socially, economically and through education and health rights. Changing the law, along with using this initiative as a tool will help to change societies’ view of women’s sexual autonomy in marriage and establish the truth that RAPE IS RAPE, regardless of the situation in which a woman may find herself.
Editor-in-Chief, Mona Law Precedent
Publications Chair, Mona Law Society
Girl Engagement Advisory Board Member
Second Year Law Student, Faculty of Law UWI, Mona
© CP-C 2014