Se-Shauna Wheatle, Contributor:
More than 10 years after the commencement of discussions on the reform of Jamaica's sexual offence laws, a new law is finally on the books. But what has emerged from the decade of deliberations and delay?
Significant strides have undoub-tedly been made in the areas of carnal abuse and rules relating to the conduct of trials of alleged sexual offences. Yet, the law does not go far enough to reform offensive legislation that prevents successful prosecution of offenders and fails to offer adequate protection to victims of sexual violence. In particular, the current provision on marital rape is inconsistent with national and international developments towards gender/sex equality and with the autonomy of women.
Law Before the Sexual Offences Act
In 1736, Sir Matthew Hale wrote: "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 herself up in this kind unto her husband ... ."
Based on this declaration, the law has for centuries recognised a 'marital exem-ption' according to which a husband could not be convicted of raping his wife. This law represented an archaic and dangerous view that when a woman marries, her separate identity ceases to exist and she becomes part of the entity of her husband, or, as Sir William Blackstone put it, when marriage occurs, the man and woman become one flesh and that flesh is male.
Catharine MacKinnon has correctly characterised this "marital exemption" as resting on "the theory that marriage creates an irrebuttable presumption of consent". Over the years, the courts have chiselled out certain circumstances in which a man could be convicted of raping his wife, and in 1992, there was a significant development in the law as the House of Lords in the United Kingdom condemned marital exemption as "anachronistic and offensive" and effectively abolished it in the case of R v R.
With that decision, the common-law position in the UK, which the Privy Council (Jamaica's final court of appeal) would arguably have recognised as the common-law position in Jamaica, was that there was no distinction between marital rape and other forms of rape.
The Sexual Offences Act, 2009
The Sexual Offences Act presented a golden opportunity for the Jamaican Parliament to crystallise the common-law position in statutory form and, thereby, show greater respect for a woman's dignity and for her concomitant right to equality regardless of marital status. This opportunity was missed, as the legislature confined the circumstances in which there could be a conviction for marital rape to circumstances that existed before the 1992 R v R decision.
Section 5 of the Sexual Offences Act of Jamaica only recognises the offence of marital rape where the spouses have separated and are living separately and apart; where there's a separation agreement between the spouses; where either party has initiated divorce proceedings; where an order has been made against the husband for the protection of his wife; or where the husband knows that he is suffering from a sexually transmitted infection.
When we take stock of the developments in this area of law, it appears that what Parliament has accomplished with respect to marital rape is actually a retrograde step which fails to adopt laws that offer greater protection for the women of this country. The result is that the law still regards a married woman as having signed away some of her rights to her bodily integrity. Her husband can have forced sexual intercourse with her with impunity unless there has been some lasting or formal rupture of marital consortium.
It has been argued that it is necessary to restrict the circumstances in which marital rape can occur because of the difficulty in gathering evidence and convincing juries or judges that rape has indeed taken place. Jennifer Temkin has indicated that this argument is unconvincing, as there are other offences that are classified as crimes despite the difficulty of proving the offence.
A case in point is that of date rape, or rape where a couple is cohabiting. In those circumstances, it may be difficult to prove the offence, yet the law rightly regards rape in those circumstances as an offence. Moreover, the circum-stances listed in the act appear to be instances in which one can argue that there is a breakdown in the marriage and that, therefore, a wife ought not be assumed to have consented to sexual intercourse. Accordingly, the circumstances rest on and seem to glorify the archaic premise that a woman gives her consent to each act of sexual intercourse with her husband and that this consent is only deemed to have been revoked in very limited circumstances.
The 'Family Sphere'
Other arguments in favour of limiting the circumstances in which marital rape is recognised as an offence can be found, but space does not permit a response to each. One that I would like to briefly comment on is the argument that criminal law is not the appropriate sphere to address 'family matters', particularly where the intervention of the law may thwart the spouses' reconciliation. It should be recognised by now that this is a spurious objection, in light of the availability of protection under the Domestic Violence Act for wives who become victims of abuse, in light of the consideration that it is dubious that it is in the best interests of a woman and/or her family to remain married to a person who has committed a sexual assault against her, and in light of the fact that a cohabiting spouse may be convicted for rape despite the cohabiting couple having a family.
The rebuttal of these and similar arguments for retaining the marital exemption prompted countries such as the United Kingdom and South Africa to end the distinction between marital rape and other instances of rape.
The unreasonableness of distinguishing between marital rape and other instances of rape is borne out when we compare the position of 'common-law spouses' and 'traditional' spouses. Under the act, a woman who has been cohabiting with a man for five years or more, and who the law regards in other contexts as the common-law wife of the man in question, will receive greater protection under the act than a woman who has undergone a marriage ceremony.
This anomaly also serves to underscore that the limitation of the circumstances in which prosecution of marital rape can occur is not for purely evidential reasons but, rather, a symbol of the perpetuation of the belief that when a woman marries, she thereby surrenders control over her body and her sexual autonomy.
Harm to Women
In addition to defying logic, the distinction perpetuated by the Sexual Offences Act produces harm to two classes of women. First, it potentially harms married women who are victims of rape at the hands of their husbands but who are not entitled to prove the offence in court and thereby obtain the protection. Second, it potentially harms the general female populace by sending the message that women do not have complete control over their sexual engagement.
The European Court of Human Rights has held that states party to the European Convention on Human Rights have a "positive obligation" to criminalise "all forms of rape" and has referred to the marital exemption as an "unacceptable idea" which was inconsistent with a "civilised concept of marriage" and with "respect for human dignity".
It is conceivable that an argument could be mounted that the Jamaican Constitution or the soon-to-be-enacted Charter of Rights mandates criminalisation of acts of marital rape as rape. This would be consistent with developments towards greater gender/sex equality.
Our nation has made significant strides in the advancement of women's equality, particularly in education and in the workplace, but we must not misconstrue this as an indication that we have achieved equality of the sexes. We must come to terms with the fact that women's equality includes the eradication of violence against women. It is instructive that the United Nations Committee on the Elimination of Discrimination Against Women regards gender-based violence as an act of discrimination.
Until we change the law's treatment of female victims of violence and transform our society's attitudes towards gender-based violence, we still have not achieved full equality for women in Jamaica.
Se-Shauna Wheatle, Jamaica's 2008 Rhodes Scholar and co-president of the Black Association of Rhodes Scholars, is reading for a Master of Philosophy in Law degree at the University of Oxford. Email feedback to firstname.lastname@example.org.
April 11, 2010