EDITOR, The Tribune.

THE issue of marital rape is once again a topic for public discussion and I beg leave to enter the discourse with some thoughts of my own.

The idea that a husband could not be criminally liable for raping his wife is based upon the supposed legal notion that a husband and wife become one person at marriage, and accordingly the wife irrevocably consents to sexual intercourse with her husband for the duration of the marriage.

It is this idea that has led to the definition of rape in criminal statutes including an exemption of a spouse from liability for that crime against the other spouse. Accordingly, the definition of rape in section 3 of our Sexual Offences and Domestic Violence Act reads as follows:

Rape is the act of any person not under 14 years having sexual intercourse with another person who is not his spouse -

(a) without the consent of that other person;

(b) without consent which has been extorted by threats of fear of bodily harm

(c) with consent obtained by personating the spouse of that other person; or

(d) with consent obtained by false and fraudulent representations as to the nature and quality of the act.

Quite plainly, the words “who is not his spouse’ mean that the definition does not apply to a person who is having sexual intercourse with a spouse without his or her consent.

In 1990, however, the courts in England were required to look at the entire question of marital rape. R, a husband, was convicted of attempting to rape his wife. He appealed that conviction on the ground of the purported marital exemption at common law. It was argued on his behalf that it is not legally possible for a man to rape his wife.

Both the Court of Appeal and the House of Lords upheld his conviction declaring that a marital rape exemption did not exist in English common law.

Lord Lane giving the judgment of the Court of Appeal expressed a view which I wholeheartedly share. He said the following:

“The idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health, or however proper her objection, is no longer acceptable. It can never have been other than a fiction, and a fiction is a poor basis for the common law.

“It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society the duty of the court is to take steps to alter the rule if it can legitimately do so in light of relevant parliamentary enactment.

“We take the view that the time has arrived when the law should declare that a rapist remains a rapist subject to the criminal law irrespective of his relationship to his victim.”

The House of Lords later endorsed the position taken by Lord Lane and dismissed the husband’s appeal to that court.

The Law Lords who comprised the House of Lords are now the members of the United Kingdom Supreme Court, and by extension members of the Privy Council which is our Final Court of Appeal and so that decision is as highly persuasive as one can get to the decisions of courts in this country.

Unfortunately, the reference that was made by Lord Lane to “relevant parliamentary enactment” is the obstacle to the application of the R v R case to The Bahamas. Any parliamentary enactment covering the same subject as a common law rule but which is contrary to the rule will be considered as abolishing the rule.

The sexual offences and Domestic Violence Act of The Bahamas came into force in August, 1991 and represents the law of The Bahamas on rape at this time, and any changes in the law relative to marital rape must begin with the removal from the definition of rape in section 3 of that Act the words “who is not his spouse”. The removal of those words would remove any statutory exemption in favor of a spouse be it the husband or wife; because it should be noted that having regard to the definition of sexual intercourse in section 4 of the act it is legally possible for a man to be raped by a woman.

The ball is therefore in the court of parliament and it is up to them to decide whether they will return it by hitting a winning shot or committing an unforced error. I hope that they do hit the winning shot because then and only then would the Bahamian people be winners on this issue.

THOMAS AE EVANS, QC

Nassau