Judge rules no rape in marriage under Bahamian law

Divorce granted on grounds of cruelty

NASSAU, BAHAMAS — A Supreme Court judge has ruled that while the actions of a husband who repeatedly “forced” himself on his wife were cruel, there is no rape in marriage under Bahamian law.

In a ruling handed down on Monday, Justice Denise Lewis-Johnson granted a divorce for a woman who said she felt like a rape victim “for an extensive period of time”.

However, Lewis-Johnson noted that the issue raised by parties of non-consensual and forced intercourse, together with the use of the word rape, required the court to consider the term in the context of the matrimonial laws of The Bahamas.

“The court accepts that rape is a most heinous act of cruelty and a malicious violation of a person,” she said.

“However, on a strict reading of laws of The Bahamas, there is no rape in marriage. Pursuant to Section 3 of the Sexual Offences Act, the law does not allow for one spouse to rape the other. In this place we interpret existing laws and apply them; we cannot and must not succumb to the temptation to reform laws.”

The woman filed for divorce on the basis of cruelty in June 2021. She reportedly left the matrimonial home in early July 2021. The couple were married in 2005 and share a son. 

Her evidence was that she had been subjected to emotional and mental abuse throughout the marriage.

“The last time the respondent climbed on top of the petitioner was on 18th April 2021 and the following morning, the petitioner suffered a meltdown at work,” the judgement read.

“The petitioner stated that the events which transpired on 18th April 2021 felt like an out-of-body experience. In her evidence in chief, she stated that she often thought to herself that this is not what marriage is supposed to feel like. She stated that sexual intercourse with the respondent became a chore and lacked intimacy.

“The petitioner alleged that the respondent would come home, lubricate himself take his pleasure, and leave. After each occasion she would have to find ways to distract herself.”

The woman asserted that it was standard for her husband to come home and ask for sex. If she refused, he would lubricate and have sex with her and when he was satisfied, roll over, watch television, use his computer or go to sleep. 

The woman claimed that her husband’s behavior and treatment toward her severely damaged her physical, emotional, and mental health, leading to her diagnosis of high blood pressure.

The husband’s evidence however was that since the beginning of their marriage his wife had treated him with cruelty by not meeting his sexual needs due to her work obligations, not attending church regularly, and refusing to attend marriage counseling with him.

He claimed that he did not participate in adulterous behavior, did not drink, smoke, or use obscene language in the home toward his wife. He furthered that he paid the household bills and had helped to nurse her back to health after two major surgeries with “patience, love, care, and attention”.

The husband further claimed that he always supported her projects financially and was always her go-to person.

“He indicated that he would often help to clean the home, as he would often return home to a dirty house,” the judgement read.

“Clothes that the respondent previously washed were not folded and the bed would be covered with the petitioner’s work. He claimed that whenever the respondent brought the issue to the petitioner’s attention, her response was ‘things were good until you reach home’. He stated in his evidence in chief that as a husband he has a right to ask for the house to be cleaned. The respondent also recalled a time when the petitioner’s wedding ring was on the floor in the front room, where the dog was licking it and the petitioner did not seem to care.”

According to the judge, it was clear from his evidence that the husband lacked concern and did not appreciate how his actions had impacted his wife. 

“The court accepts his evidence of meeting the financial needs of the family, of loyalty, fidelity, and commitment; however, given the evidence in its totality, I find that the respondent was cruel to the petitioner,” Lewis Johnson ruled.

“Notwithstanding the respondent’s belief that his actions were his right in marriage, I find the manner in which he carried out that right – his forcing himself on his wife, his ignoring her feeling of not being a willing participant in intercourse resulting in mental harm to the petitioner and a feeling of being violated – meets the standard of cruelty under Section 16(1) of the Matrimonial Causes Act.”