The position in the common law of England was in 1991, in the case of R v R clearly decided and enunciated by the House of Lords in a unanimous decision. Their Lordships pronounced that in relation to the implied marital exemption to a charge of rape by a husband of his wife without her consent, no such exemption exists in law. Their Lordships stated ending their decision, "The remaining and no less difficult question is whether, despite that view, this is an area where the Court should step aside and leave the matter to the parliamentary process. This is not the creation of a new offence. It is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it".

What then is the position in Jamaica? Well the common law applies to and forms part of our laws. The decisions of English House of Lords on the common law are binding on our Courts. Therefore, the 1991 decision of R v R , is also our common law. So, there is no common law exemption to a charge of rape for a husband in Jamaica. Though I do not know of any marital offence charge having been brought and tried here, such a charge is clearly maintainable here in Jamaica.

The Government decided to draft a Bill in 1995 which was laid in Parliament and a Joint Select Committee commenced its discussions. This process not having been completed, the Bill fell off the Legislative Calendar. The Bill entitled 'An Act to Amend the Offences against the Person Act' sought to amend the law relating to rape and other sexual offences as they appear in the 1864 Sexual Offences Act, which is woefully ancient in concept and language.

The Bill, as I had mentioned gives a statutory definition of rape and makes it gender-neutral and among other offences, provides for a statutory (as opposed to a common law) offence of marital rape.

The Bill states that a spouse commits rape when such spouse has sexual intercourse with the other spouse (1) without the consent of the other spouse; (2) knowing that that spouse does not consent or recklessly not caring whether or not that spouse consents, in the following circumstances:
a. the spouses have separated and live separate and apart as defined in the Matrimonial Cause Act;
b. there is a separation agreement between the spouses
c. divorce or nullity proceedings have been filed;
d. an order or injunction has been made or granted for non-cohabitation, removal from the matrimonial home or for the protection of the other spouse;
e. an undertaking relating to any of the matters in paragraph (d) has been given;
f. the act of sexual intercourse is preceded by or accompanied by or associated with physical violence, harm or injury or threats of such, to the non-consenting spouse;
g. the spouse knowingly suffers from a sexually transmissible disease

It is at once apparent that this section in the Bill is an enactment of various decisions of the common law enunciated in English Courts and which are part of our common law. The Bill however adds, that the Director of Public Prosecutions must consent to a prosecution. This is not acceptable to women's rights activists. As women are largely the victims of rape by men, in effect, Parliament is again seeking to delimit the capacity of married women to determine and know when their rights have been infringed; and also when an offence has been committed against them and whether to report it and pursue a prosecution of the perpetrator.
I ask, if a 16 year old girl can report and prosecute a rape in the ordinary course of criminal justice, why cannot a 25, 35, 45, 55 etc year old woman or spouse be able to do likewise? Why must an official (so far all have been men!) have to decide for her whether or not the act of her husband which she says was rape (and the facts would speak to this or not any such charge) should or should not be prosecuted by his say so?
I trust that the powers that be will resurrect this Bill and move it through the enacting process. Sexual Offences of all kinds are so prevalent now that the need for clear, up-to-date legal provisions cannot be in doubt nor should they be further delayed.
Rape, it must be remembered, has nothing to do with sexual intimacy. It is an act predicated to exercise dominion/control over and to debase the partner. This is in complete conflict with a union of partners which is what marriage has been for sometime.
A note to remember - it is not the religious ceremony which makes us lawful spouses. It is the fact that the Priest, Pastor, Reverend or other Faith Leader, who conducts the ceremony is also a Marriage Officer under the Marriage Act and who has followed the requirements of the Act in the ceremony, which makes the marriage legal and valid.

Margarette May Macaulay is an attorney-at-law and a women's and children's advocate.

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