I
really do not like the common term used by many to describe
the rape of a spouse by his or her partner--marital rape.
Why? The name implies that there is something unique or
different between a spouse raping his or her marital partner
and stranger rape. I wonder if we never used that term would
it have made it easier to accept. Rape is rape, no matter
who is the victim. However, we are forced to use that term
because for centuries around the world, statutes and laws
prohibited a husband from legally being charged for raping
his wife. It is embarrassing to acknowledge that so many
countries, including ours, seemingly still lacked judicial
intelligence and gumption to have equality in our laws.
Regrettable,
for decades in most countries around the world, the rape of
a spouse by his or her partner was not a chargeable offense.
Deborah C. England in her article entitled “The History of
Marital Rape Laws” states: “Marital rape was a term that was
viewed by the law as an oxymoron until shamefully late in
the history of United States of America. Until the 1970s,
the rape laws in every state in the union included an
exception if the rapist and the victim were husband and
wife.”
She further explains: “For decades there were the
justifications for this marital rape exception. 1) “The
British common law view that the contract of marriage
includes the husband's "right to sex"—the wife having given
consent for all time by entering the contract. 2) The
traditional view of wives as the property of their husbands
with which they could do as they pleased under common law.
3) The public interest in promoting privacy and harmony in
marital relationships, which discouraged the state from
interfering in the relationships.”
Once again, the discussion about the rape of a spouse being
made legally possible is being raised again. We must never
stop talking about it until the change has taken place. I am
disappointed and ashamed that a growing county like The
Bahamas, has so much difficulty adjusting the current laws
to make rape inclusive of rape of a spouse by his or her
partner. The reasoning and arguments being put forth are
inconsistent and impractical.
Do
you realize that there is no legal argument to make the
murder of a wife by her husband to be a breach of the union
of marriage? There is no legal argument to make incest an
acceptable act between a mother and son or daughter and
uncle because they are blood relatives. Why then do some
people, including some religious leaders, political leaders,
teachers, parents, spouses argue that a husband cannot rape
his wife. It does not make sense.
Then many are asking “What if” questions. These “What if”
questions are causing us to get stuck and are planting seeds
of doubt and fear. In my 2016 article entitled “What If?” I
wrote:
“Do you realize that “what ifs” can cripple you?
Sometimes they are simply frivolous or stupid. They freeze
us in a position of nothingness or allow us to become
stagnated. What ifs can cripple a relationship, family, and
nation. What ifs can even cripple a government.”
Why are there so many “What if?” questions when such
questions are not being raised for any other existing laws.
It is true that persons can lie and falsely accuse anyone,
about any malicious act or any crime. The possibility of
doing these things does not minimize the power of the law.
For decades there have been many wives who, while divorcing
their husbands, would falsely accuse them of molesting the
children so these wives can have total access to the
children. The frequent raising of these accusations by wives
in a court of law does not initiate an argument by lawmakers
or anyone else that
divorce itself should not be legal or
that the divorce laws make no sense. That would be
unreasonable.
Hence, let’s get to work and make marital rape enforceable
by law. How can we get this done? It is my opinion that
there is no need to create a new law just dealing with the
rape of a spouse by his or her partner. All that is needed
is the amendment of the current law to remove restriction
and repeal of
Section 15 of the Act. The Sexual Offences Act Section 3
states: “Rape is the act of any person not under 14 years of
age having sexual intercourse with another person who is not
his spouse . . . “ Removing the words “who is not your
spouse” would allow the legal definition of rape in our law
to include anyone--married, never married, single (not under
age 14), widowed, divorced, etc.
Also, it is important that Section 15 of the Act should be
repealed. It states: “Any person who has sexual intercourse
with his spouse without the consent of the spouse —(A) Where
there is in existence in relation to them — (i) a decree
nisi of divorce; (ii) a decree of judicial separation; (iii)
a separation agreement; or (iv) an order of a court for the
person not to molest or co-habit with his spouse, or any
other order made under Part II; or (B) where the person has
notice that a petition for judicial separation, divorce or
nullity of marriage has been presented to a court, is guilty
of the offense of sexual assault by spouse and liable to
imprisonment for a term of fifteen years.” In other words,
only if a wife is being divorced, or is legally separated,
etc. can she charge her husband of rape. In the law, there
must be no stipulation of social or marital conditions
preventing the charge of rape.
My
first article in this newspaper on marital rape was
twenty-four years ago (1998). I have published at least
twenty more since then. For more than twenty-five years
there have been nationwide discussions, telecasts, and
referendums on the topic. It is now time to end the
discussion and act.
We
must not allow the misguided, patriarchal, misogynistic
beliefs, traditions, and practices of the past, to be used
as current arguments against equality of the genders in law.
Let us all stand up and make a difference.
Barrington H. Brennen is a marriage and family therapist.
Send all your comments and questions to
question@soencouragement.org or call 242-327 1980
or visit the website
www.soencouragement.org
