W V M I Community Forum

Press Release for immediate Release
Official Statement
Submitted by

DR. Sammy D.James

On
MARITAL RAPE ACT AMENDMENT BILL
(MORE CONCERNS AND QUESTIONS THAN ANSWERS)
MARITAL RAPE PROPOSED AMENDMENT
A SERIOUS ISSUE DEMANDING ANSWERS TO QUESTIONS
The highly debated and sensitive bill addressing the issue of “Marital Rape” is gravely serious, complex, complicated, and multi-dimensional subject that has the potential of leveling far-reaching and cross-generational affects on any Western Society built on Judaic-Christian principles. The impact and implications of such a law could be incalculable.
First, I almost think it is unnecessary to say that any reasonable civic-minded citizen would ever condone, support, tolerate, allow, accept or imagine the act of rape in any form or kind, be it in the context of marriage, out of marriage, male or female, male and male, female and female, adult and youth or child, incestuous or any type. Rape is the greatest violation of the human spirit and there is no greater abuse of the human person. Rape is wrong, inhumane, unacceptable, and should not be named among members of a civil society in or outside a marital covenant.
The Loud Silence
Many are wondering why responsible, civic-minded, social, religious and spiritual leaders were not hasty in their response or seem reserved in addressing this issue publically. This is because of its complexity and far-reaching implications. This silence is a loud deafening cry of caution on this matter, because it touches the very inner sanctuaries of the time-honored institution of marriage.

Questions of a Young Democracy
This issue brings to the national table many questions that we, in The Bahamas as a young democracy, are yet to resolve. Many of these questions are so complex that even historically mature democracies such as the United States, Canada, and Great Britain are still grappling with them and have uneasily settled on enforcing it into law (See: Convention on the Elimination of All Forms of Discrimination against Women- UN General Assembly).
Here in the Bahamas, while discussing these issues, we must also be cognizant of the national ideal on which our culture, national psyche, and spiritual foundations are constitutionally built which embraces the historic Judao-Christian faith. This is essential because it creates the context of our perception and perspective of life.
Here are some of the questions for a growing democracy such as the Bahamas:


1.What is the primary role of Government?

2.What is the role of Government as it relates to personal freedoms?

3. What is the role of Government in regulating marriages and family.

4.What are the limitations of Government as they relate to citizen’s

Privacy?

5.When and why should the State (Government) take custody of our marriages, families and children?

6.How much should the Government police the inner chambers of the most sacred relationship in Western society and protect the most private institute left among our citizens?

7.How much Should the Government encourage the creation of laws that could undermine the confidentiality, security, confidence and private rights of the citizens?

8.Should the Government allow laws to be created that could give potentially abusive power and legitimacy to the vindictive, spiteful, confused and ill-tempered among us?

9.Is this Bill an attempt to address a symptom at the expense of creating greater causes of a myriad of new problems?

10.Do the judicial institutions and court systems posses the mechanisms, personnel, legal instruments and maturity to entertain the potential accusations and allegations that could potentially destroy countless lives, reputations and character of innocent individuals?
11.Should the long arm of the Government extend to the marriage bed?
These are just a few of the many questions that MUST be considered before any attempt to address such a serious issue as marital rape.
Questions for Consideration
WE cannot make light of the gravity and seriousness of the issue of rape of any form, but we must balance our zeal with caution and wisdom. Here are some questions that must be discussed and answered:
How many cases of marital rape have been documented (what response have the proposers gotten from counselors, clergy, psychiatric and social work professionals) to substantiate this strong response for consideration of a new law?
From a global perspective, is this issue being imposed from the situation in other foreign cultures where such prevalence of marital rape is a result of social norms that have no relevance in our culture?
Should we as a society adopt laws that were intended to correct social concerns in distant societies and impose them on our culture without ensuring that our unique concerns are the same?
DEEP CONCERNS
Perhaps the principle challenge with this Bill is that it attempts to criminalize the act of sex separate and apart from the activity that led up to the act.
The legal marital covenant creates the context for sexual intimacy and protects the individual’s right to sexual intimacy from interference by the law or government. However, the principle concern here is not the sexual act, but rather the conditions and physical activities that preceded and led to the actual act. If the activities preceding the sexual act are considered acts of force, violence, abuse and unreasonable pressure in the context of marriage, then this can be considered Domestic Violence, and if it ends in sexual intercourse, then it could and perhaps should be considered Rape.
There are laws already on the books that address the issue of Domestic Violence and laws that address the issue of Rape. These laws deal with separate and different aspects of abuse and violence. It is suggested that the Penal Code Chapter 84, coupled with the current Sexual Offence and Domestic Violence Act Chapter 99, more than provide remedies for an individual within a marriage.
Further, if domestic violence (including the element of non-consenting sex) occurs within a marriage, then if upon conviction, the appropriate aggravating factors should be seriously and thoroughly considered during Sentencing.
It is important that no law be created to criminalize the legitimate act of sex between a married couple, but it should criminalize any and all acts of forced violence even if the act results in sexual intercourse. It is also important to properly and effectively define “violence” in this context.

CONSIDERATION
It is important that every citizen, whether male or female, married or unmarried, young or old, be protected from any type of abuse including rape. It is critical that the present laws on the books be examined to see how they can be strengthened to address all types of situations relevant to this issue of Marital Rape.
It is interesting to note that in spite of all the laws given by the biblical Law-Giver, Moses, most of which we and all Western societies have adopted today, he addressed such subjects as adultery, fornication, co-habitation, rape, domestic abuse, and many others, but there is no law addressing such an issue as “marital rape.” Perhaps it should warn us of the danger in tampering with this delicate balance between the “private”, “sacred” and the “public.” Perhaps it should also indicate our need to consider the wisdom of the Law-Giver in this regard.
It would be prudent and wise for the governing powers and those responsible for creating law to regulate our society to slow the drive to present this Bill to the House and postpone any decision in this regard until all the right questions are asked and answered?
Some Challenges with the Proposed Bill
The principles of decision-making are not what a decision would accomplish, but its consequences must also be weighed as much as the decision. On this issue the questions continue! Caution and patience are recommended.

THE PRESENT LAW
The present Law on the books states:
Rape is the act of any person not under fourteen years of age having sexual intercourse with another person who is not his spouse-
without consent of that other person; without consent which has been extorted by threats or fear of bodily harm;
with consent obtained by personating the spouse of any other person; or
with consent obtained by false and fraudulent representations as to the nature and quality of the act.
The above statement of emphasis, “who is not his spouse”, is the crucial concern in this debate and should be the heart of any consideration for amendment of the Bill; as it only limits “rape” to incidents outside of marriage.
The amendment to the law should be revised for this statement to include any act of violent, forced, extorted, threatened or fraudulent act of sexual intercourse of “another person who may or may not be a spouse” of the perpetrator.
This amendment should not and would not change the present law and its intent of protecting any person from the act of Rape no matter what is the context of their relationship.
The amendment should not allow the marital covenant to be used as a shield to protect the individual from any act of Violence against another person whether they are married, separated or divorced at the time.
However, it should and must be strongly stressed and emphasized that the law should be focused on, against and to address the preceding acts of violence, extortion, threat and act of fraud rather than against the act of sexual intercourse. Some of the major concerns inherent in this proposed Bill amendment as it relates to marriage include the following:
Will the institution of marriage be preserved?
What is the principle issue that Parliament is attempting to cure?
What is the ratio (percentage) between women who may suffer at the hands of a vicious husband as oppose to the stigma to be permanently attached to an innocent husband who has done no wrong?
Does the Bill purposely avoid a penalty for false accusations by the spouse?
Why has the Bill intentionally extended (via Section 5E) the limitation of time for an offence triable under this Act to two (2) years?
What are the unintended consequences of any amendment as it relates to the rights of both parties being protected?
Will the amendment be used a means of spite or the excuse to end marital relationship differences?
Will the proper checks and balances be put in place to ensure that unfounded claims are not made?
Will those investigating these matters be given clear written protocols and would they be mature, confidential persons?
Will mandatory counseling be a part of the initial intervention by the law?
Is the amendment being considered within the context of the other family related laws to ensure that the potential for conflict is minimized?
Will Government revisit the development of a “family life” curriculum to be taught as a core subject in each school?
Should any charges be established under the Act without the Attorney General’s consent so as to minimize the potential for abuse?
Marriage as an institution is already under tremendous stress and this proposed amendment incorporates the potential to further damage the thousands of marriages that are struggling to survive the many challenges couples face, without adding the insecurities, fear, uneasiness, suspicions, and potential manipulation inherent in the atmosphere this issue could create.
CONCLUSION:
The above extensive lists of questions indicate how complicated and complex this issue is as it relates to Married couples and the extent of its implications and possible consequences on the greater social net and moral fabric of our society.
In light of the many questions above, the recommendations as it relates to the proposed amendment are as follows:
To reaffirm the collective abhorrence of any form of violence and the act of Rape in our society.
The perceived “Fast-track” process to amend this bill in its present form should and must be slowed down for opportunity for further careful consideration and answers to the many questions raised above.
The need for the establishment of a National Committee on the issues incorporating a diverse, appropriate, broad sector of persons from our community to review and study the concerns presented in this document.
The need for broad consultation with diverse minds in the community for re-presentation of this proposed bill addressing the distinctions between the various issues such as; defining “violence”, defining and establishing the criteria for the distinction between “sexual consent’ and “forced Sexual intercourse”.
Reconsider including the vague terminology of
“Marital Rape” as a broad paint brush to address and cover a very complicated and complex intimate and private issue as sexual relations in Marriage.
Agree that this issue is not just a legal or social issue but a moral and spiritually confidential issue of a grave magnitude.
Agree that ‘violent Rape’ could and may occur in marriage and should be legally prevented, and judged by society, but the framework and context for this judgment must not jeopardize the security and in some cases the fragility of the marriage institution.
Agree that Caution and postponement is evidence of strength and wisdom not weakness and failure.
Submitted by:

Dr. Sammy D.James

President/Chairman

Bahamas World Vision Ministries International

World Visin Seminary Theology School

September 2009

LEGAL ABSTRACT
Even though many countries still permit husbands to rape their wives with little or no consequence, there is a growing trend that marital exemption is unjust and has no place in a civilized society. Recognition of the inappropriateness of marital exemption is, however, only the first step towards its elimination. To effectively equalize treatment of marital and non-marital rape, legislatures and judiciaries must take action. Several countries have already been host to the abolition of marital immunity, but their approaches may not be the most effective. This Note examines the experiences of England and Canada as examples of judicial and legislative abolition of marital exemption, respectively. The Author explores several factors that would lead to effective change, including timely alignment with societal morals, thorough and thoughtful consideration of the issues, and legitimacy in the eyes of citizens. After reviewing the effectiveness of approaches such as those employed in England and Canada, the Author argues that an even better method would rely on equal protection provisions found in state constitutions and international treaties.

TABLE OF CONTENTS

I. INTRODUCTION

II. ENGLAND: A MODEL OF THE JUDICIAL APPROACH
A. Chipping Away at Common Law: The
Path Leading to Abolition of Marital

Immunity
B. Public Response to Judicial Criminalization
of Marital Rape

III.CANADA: A MODEL OF THE LEGISLATIVE APPROACH

A. Feminist Activism and Parliamentary
Notice of a Problem Leading to a
Change in Marital Rape Law
B. Reactions to the Passage of Bill C-127

IV. SHORTCOMINGS AND SUCCESSES: THOROUGH
AND TIMELY REVIEW VERSUS LEGITIMACY
A. The Judicial Approach 1. Advantages: Holistic Review of an

Historical Concept
2. Disadvantages: Legitimacy, Retrospectiviand Case Dependency
B. The Legislative Method
1. Advantages: Legitimacy and Prosecutorial

Independence

2. Disadvantages: Legislative Delay and

Abstract Review
V. PROPOSED SOLUTION: EQUAL PROTECTION CLAUSES

AS A TOOL FOR CRIMINALIZING MARITAL RAPE

VI. CONCLUSION

I. INTRODUCTION

For centuries, husbands around the world have been granted marital exemption (1) to the crime of rape. It was not until the last half of the twentieth century that marital rape was even recognized as a legal problem. (2) Prior to that time, most believed that it was impossible for a husband to rape his wife. (3) This conclusion was justified under three separate theories: the implied consent theory, the unities of person theory, and the property theory. (4)

The most common theory behind the impossibility of marital rape is the implied consent theory, which is structured around contract law. (5) Stated succinctly by Sir Matthew Hale in the seventeenth century, "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract." (6) Hale believed that "matrimonial consent" was irrevocable. (7) Variations on Hale's strict irrevocability principle allow for a wife to revoke her implied sexual consent only in times when "ordinary relations" in the marriage are suspended. (8) For example, a woman can revoke her implied consent when she and her husband are separated. (9) Until recently, this view was widely accepted. (10)

The unity of person theory, on the other hand, does not even recognize the wife as a separate being capable of being raped. (11) This theory stems from the belief that when two people marry, they become one. (12) The being of the woman is incorporated into that of the husband such that the existence of the woman is effectively suspended during marriage. (13) Marital rape is thus impossible because a husband is not capable of raping himself. (14)