Op-Ed: A legal look at marital rape ruling

Op-Ed: A legal look at marital rape ruling

By Tanya N. Wright, Attorney

If the August 31, 2022 report of the Supreme Court’s ruling in a recent divorce matter is true, the Ruling is a missed opportunity of epic and catastrophic proportions. It is a dog whistle to every abusive spouse in this country that has set us back decades in our mission to preserve basic human rights and the rights of women in particular.

I almost feel the helplessness in the sentiments attributed to Her Ladyship in this article that “in this place, we interpret existing laws and apply them. We cannot and must not succumb to the temptation to reform laws.”

It is clear to me that if she had the power to determine the legality of a spouse ignoring the other’s “feeling of not being a willing participant in sexual intercourse” she would have done so with the full weight of the law.

Her Ladyship has earned her stripes as an advocate for women’s equality and rights having volunteered along with Dr. Sandra Dean Patterson, myself, and other human rights advocates with the Crisis Center. This Justice has presented and led discussions on the Sexual Offenses and Domestic Violence Act, to which she referred in her ruling, before and after its passage. She is aware and well versed in the application of this Act and its unfortunate limitations. In fact, there is probably no Supreme Court Justice more personally attuned to the Act and to the human consequences of being a victim of what the Act fails to nail down. While I applaud Her Ladyship’s bold decision to speak on the controversial and emotional topic of non-consensual sexual intercourse during the subsistence of a marriage, especially when the ruling did not in the end turn on it, the ruling was a missed opportunity.

By saying merely that the conduct being complained of met the grounds for cruelty but that “there is no rape in marriage,” the ruling did not take advantage of the opportunity to emphatically remind us all that in certain circumstances there are offenses created under the Act committed when a spouse ignoring the others “feeling of not being a willing participant in sexual intercourse, is in fact a crime, albeit not rape. Section 15 of the Sexual Offenses and Domestic Violence Act creates the offense of Sexual Assault By a Spouse in certain circumstances punishable by imprisonment up to 15 years.

How, we must ask ourselves, can Sexual Assault by a Spouse be punishable by imprisonment of up to 15 years but Rape by a Spouse not exist?

The Act does not allow for a spouse to have sexual intercourse with their spouse against their will without any criminal consequences whatsoever. It is unfortunate that the ruling or report of this ruling did not make that resoundingly clear especially after taking the bold decision to address the Act in the first place.

Further it is unfortunate that the case was permitted to be sealed so that we could get the full context of Her Ladyship’s decision. We are left to wonder whether certain words and statements were slips or mistakes in the judgment or error in the reporting.  It was reported that “according to Lewis-Johnson the husband is “correct” in noting that Bahamian law provides for sex in a marriage. She said there is a “right for consummation.”

It is not disputed that marriages require consummation for legitimacy and that this requirement is fulfilled after the first act of intercourse. However, consummation is A REQUIREMENT for the marriage to be legal not A RIGHT given under the law. Consummation still requires consent for the act of intercourse for it to be lawful under the Constitution which guarantees security of the person and the protection of the law.

The view attributed to Her Ladyship that there is a “right” for consummation according to Bahamian Laws is not one that I can in good conscience support. I am not aware of any law which makes sexual intercourse a “right” in a marriage. According to the report, Her Ladyship opines that this “right” “ought not to be taken by force”. This must certainly have been or intended to have been expressed in more absolute and mandatory terms, as opposed to the casual and discretionary ones contained in the report.

The unfortunate reports of this ruling have resulted in a deafening high-pitched whistle to those who share the views of the male respondent in this case that a “wife’s obligation is to have sex with her husband”.

To the extent that this ruling has emboldened the men and women in our society who think that putting lives in danger for the sake of one-sided sexual gratification is a game, it was a catastrophic fail and saddened by the fact that Her Ladyship has personally given so much to this cause and yet apparently felt bound to abide by letter, not intent, of the wording of the law for the intent is clear even if the wording muddies the interpretation.

These horrendous views need to be eradicated from our society for the sake of my daughters and nieces and yours. This is not a game.

It is regrettable that as a society we have trifled with an individual’s basic human right not to be assaulted sexually. Our male and female leaders have paid lip service to support for these rights and when they involve female victims they have shown a shocking and shameful disdain and mocking indifference which shows no sign of waning.

We should all cry a collective National shame for the way we have allowed our consciousness to be seduced away from morality and human decency in the name of religion and politics.

Her Ladyship rightly said that “rape is a most heinous act of cruelty and a malicious violation of a person.”  Is there anyone in our society who would disagree that what this spouse endured in her marriage was a heinous act of cruelty and a malicious violation?

It would appear that the court was satisfied  “from his evidence that he lacked concern and did not appreciate how his actions impacted the petitioner.” I suspect the matter was sealed at the request of the Petitioner, still trying to protect her abusive former spouse or herself when she should have nothing to fear.

On that note, I will close with the hardest reality check in this matter. The Sexual Offenses and Domestic Violence Act only goes so far as to protect spouses who are victims of sexual and other violence. Typically this protection requires some form of judicial intervention in the marriage before it can apply.

This means that until our laws and mindsets evolve, victims of domestic violence must report abuse perpetrated against them and make their personal safety an absolute priority, above financial needs, above loyalty, above fidelity, and above commitment, all of which the court apparently found it important to assure the parties that the abusive husband had met.