Jamaican law and marital rape

This subject is presently receiving some public interest. The comments made by several male callers during the last airing of the programme ‘Man Talk’ and the statements of Rita Marley indicate a divergence of views and great confusion about the subject.

Let me attempt some definitions.

‘Rape’ is not defined in the Offences Against the Person Act, which provides that any person who is convicted of the crime of rape, is guilty of a felony and shall be liable to imprisonment for life. It is however, defined in common-law, as simply the penetration of the vagina by the penis without the consent of the woman.

When the act is achieved by use of violence, the threat of violence or the use of a weapon, this clearly highlights the lack of consent and aggravates this most heinous offence and may give rise to the addition of other charges to the indictment.

Rape is defined in the Bill entitled ‘An Act to amend the Offences Against the Person Act’ which was laid in the House of Representatives some time ago, seeks to amend the existing provisions relating to sexual offences in the principal Act(which has been in existence since 1864). The Bill states that a person commits rape if sexual intercourse is had without the consent of the other person and knowing that the other person does not consent to it OR recklessly not caring whether or not hat other person consents. For example the man who said that he has had sexual intercourse with his wife while she was fast asleep and she did not awaken. She only knew about it when she woke up in the morning and found evidence of the act on her body.

The Bill further states that for this purpose consent shall not be held to exist where the apparent agreement is gained by threats or fear of bodily harm to the complainant or to a third person, or it is obtained by fraudulent means about the nature of the act or about the identity of the offending party.

The Bill defines “sexual intercourse” as the penetration of the vagina, anus or mouth of a person by the penis of another person; OR the penetration of the vagina or anus of a person by a part of the body of another person or by an object held or manipulated by another person, except for conducting searches authorised by law or for bona fide medical purposes. It also has the catch-all provision that nothing contained in that subsection shall limit the circumstances where there is no consent to sexual intercourse. This means that instances other than those stated above may be added to the definition by the Courts.

What then is “marital rape”? This offence has a very checkered history. That it is an offence there is presently no doubt. It just took Judges several centuries to clear the thought processes and perform their duties to see that justice is extended to all persons. You see, married women, have for centuries been treated as non-persons under the law. In the 18th and 19th centuries, a married woman was held at marriage to surrender and subject herself to her husband” control in all things. She had to obey him in everything. She gave up her right to him to deal with her property, she had no freedom of movement or action except as permitted by her husband. She had no right to any say in her husband’s control over the lives and upbringing of the children of the marriage and, of course she had no say in the conduct of her husbands’ affairs or his movements. These absolute rights were assumed by men for themselves and held on to for as long as they could get away with it. But, of course, absolute power corrupts and they were so abused that some men and women agitated for change.

By the late 20th century, the status of women, and married women had in law and in fact, changed drastically. There is not now a married man who can say factually, at least in western civilised society, that he has absolute control over his wife’s life, property and movement. Anyway, the historical absolute control, gave rise to the fiction that on marriage the woman surrendered her body to her husband irrevocably. On this fiction the concept of a marital exemption to a charge of rape was founded.

Though it was only in 1991 that the House of Lords in England definitively buried this fiction, Scotland had done so years before, I wish to go into the various cases decided over the years. They are quite fascinating and clearly illustrate the legal contortions of Judges to maintain the fiction of marital exemption to the charge of rape. Is this surprising? Men were the perpetrators of rape and the Judges were all men then. I shall do this in my next article.

Margarette May Macaulay is an Attorney-at-Law and a Women’s and Children Rights Activist