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The AG, the bishop and the email

Although Bahamas Christian Council President Bishop Delton Fernander told National Review on January 17 — the same day Attorney General Carl Bethel addressed a United Nations body on human rights issues — that he had not received a copy of the Sexual Offences (Amendment Bill) 2018, there is evidence that suggests he did, in fact, receive it.

Bethel emailed the bill to Fernander at 9:19 a.m. on January 9, and received a response from “Dr. Delton Fernander” within the hour.

In that email to the Christian Council president (sent to [email protected]), the attorney general wrote: “Dear Mr. President and Bishop, here is a confidential copy of proposed legislation on the marital rape issue for confidential discussions with your colleagues.

“Kindly inform me of your considered views. Best regards, AG.”

The subject of that January 9 email was “Sexual Offences (Amendment) Bill, 2018”.

The bill was attached to the email.

The response sent to the attorney general that day was:

“Received.

“In HIS service.

“Dr. Delton Fernander.”

While addressing the UN Human Rights Council (UNHRC) in Geneva, Switzerland, Bethel said, “The draft bill, I can tell you, has been circulated to religious leaders and civil society advocates for comments in advance of formal publication.

“I can confirm that responses received from religious communities and civil society, as late as yesterday evening, have been supportive of the proposed amendment to the law.

“So we feel very confident that we will be able to proceed in short order.”

When we heard the attorney general make that statement on January 17, we called the Christian Council president and asked him whether he and the Christian Council had received the bill.

Fernander informed that they had not – a point we reported in the news.

Last Tuesday, nearly a week after the UN address, we called the Christian Council president again and asked him whether he had yet received the bill.

Again, Fernander informed that the bill had not been received.

“I haven’t perused any bill [they intend] to bring to Parliament,” he said.

We wanted to be clear that he was saying he never received the bill, so we asked again whether he got a copy of the bill, not whether he perused it.

“I don’t have it,” Fernander said. He wished not to comment further on the matter, saying he would reserve comment until after he met with the attorney general.

It was interesting for us to learn that the attorney general had received an email from Fernander’s address confirming receipt of the bill, given that two weeks later the Christian Council president was still telling us that he did not get the bill.

The reason this matter is important is because the issue of consultation has featured prominently in the whole marital rape discussion, and our reporting — based on our two conversations with the bishop, one on January 17 and the other on January 22 —  may have left the impression that the attorney general had been  misleading.

We now know that Bethel, in fact, did send the bill to the religious community through the Christian Council president; that he asked Fernander to discuss the bill with his religious colleagues, and that Bethel got back an acknowledgement from Fernander’s email that the bill had been received.

Given evidence of the email, we were thus confused by Fernander’s statement after the UN address on January 17.

On January 19, The Tribune quoted the Christian Council president saying he was shocked by the government’s international commitment to criminalize marital rape, calling it a “terrible” move that did not demonstrate good faith.

He said the Christian Council was due to meet with the attorney general on January 30.

“Whoever he consulted with, I guess he got the green light,” Fernander said.

“I find it shocking, if we were supposed to have a consultation, but I guess that’s the approach.

“We were going to have a going-through with the legal team, so now when we talk about the 30th, it’s more or less ‘Tell us what you plan to do’, as opposed to get some input from us.

“I find it terrible. I would have hoped that this was leading to consultation, but the move to go to Geneva, especially when you go to an international organization and say ‘This is what we plan to do’.”

But, according to the email, the Christian Council president had, had the bill for more than a week already.

On the same day he emailed the bill to Fernander, Bethel also emailed the bill to Matt Aubry, of the Organization for Responsible Governance (ORG).

While Fernander said he did not have the bill, ORG confirmed to us on January 17 that it had received a copy of the bill.

After his UN address — in which he addressed matters from marital rape to immigration and existing legal protection for members of the lesbian, gay, bisexual and transgender (LGBT) community, Bethel received blowback.

He was accused of failing to inform the Bahamian people on important policy decisions before informing the international community.

Fernander in the Tribune article seemed to be hearing for the first time that the government planned to amend the law. But if he was keeping up with the news, the announcement of the planned amendment should not have been surprising.

The attorney general released a statement insisting that he had previously announced the government’s plans to address several key issues that had been dominating public discourse in recent weeks. While we had not yet seen the bill, his announcement at the UN group on the marital rape issue was not new to us.

On December 21, Bethel told reporters that his office plans to draft amendments to the Sexual Offences Act to address the issue of marital rape and other issues and release them for consultation with the public.

Govt must act on critical issue

This issue of marital rape resurfaced on December 15, after UN Special Rapporteur on Violence Against Women Dubravka Simonovic pointed to The Bahamas’ failure to criminalize marital rape.

After initially telling the media that the issue was “not a matter that the government has determined to move on at this time”, Bethel said on December 21: “The comment made (by Simonovic) came out of the blue, but having been made, it did raise a very important question and that question being that, within the bond of marriage, there are certain areas where spouses, male or female, are not protected from certain conduct that, in any other relationship, would be a crime.

“So the question of how we fix that gap in the law is now very much to the fore in social dialogue; it is very much to the fore in my thinking, and my officials and draftspersons are looking very closely at it; because we feel that, with very minor amendments to the law, we can make a real great leap forward in terms of the protection of the vulnerable in our society.”

We have thus far been unable to get some members of the religious community to state their position on the marital rape issue.

Fernander told us several times that he had not had an opportunity to discuss the matter with Christian Council members, and would not offer a personal view on the matter.

He said they needed to see the bill first and carefully consider it with lawyers.

Pastor Mario Moxey, of Bahamas Harvest Church, also said on January 22 that he had not yet seen the bill.

“It is my understanding that the Christian Council president did not receive a copy of the draft; I personally did not receive a copy of the draft, so when the AG communicated that the draft had been distributed to church leaders, I was shocked that he was saying that without me actually seeing the draft, or the Christian Council president seeing the draft,” Moxey said.

“… I think if this was a draft that they wanted us to have, they certainly would have had the means to, so this was not a matter of if we were accessible but more a matter of their will to provide us with the draft.”

We have been critical of the attorney general in the past, but on the matter of whether he sent the bill to the religious community in enough time for it to be read and considered, we see no need for criticisms.

As one of Fernander’s colleagues, Moxey should have been sent a copy of the bill by the office of the Christian Council president.

While he did not state a position on the bill, as he did not have it, Moxey said he believed that rape can occur in a marriage, but he said there are issues surrounding that, that needed to be carefully considered.

“The reality of it is, if a man or a woman were to murder their spouse, we don’t say ‘Well, I can’t murder myself’. The law comes into effect and due process is made. That person is arrested. So, a man can abuse his wife; a woman can abuse her husband,” he said.

At the annual Red Mass early this month, Archbishop of the Catholic Diocese Patrick Pinder reiterated his support for outlawing marital rape.

He said when sex is forced within the union of marriage it is not conjugal love, but a “crime against the dignity of the human person”.

“When an individual is forced to engage in sexual activity against his or her will then the perpetrator does violence to the dignity and value of the human person created in the image and likeness of God,” Pinder said.

“When forced sexual activity takes place within the context of marriage, the biblical understanding of marriage is distorted, and the relationship between husband and wife is ruptured.

“Such sexual activity is not conjugal love and is rightly seen as a crime against the dignity of the human person.

“It must be clearly understood that rape is never an act of love, nor is it ever an act of intimacy.

“It is always an act of violence against the person. Like any act of violence, be it physical, verbal or otherwise, rape has no place in the communion of life and love, which is marriage properly understood.”

Now that we have confirmed that the bill was sent to the Christian Council on January 9, we look forward to the group stating its position on this critical issue. We hope that the Christian Council does not distract from the issue by seeking to argue that there was not proper consultation, without going at the heart of the issue of marital rape itself.

The bill is not a hard read. It is a short bill — one and a half pages long.

We reported on it in its entirety last week.

Currently, the act states that any person who has sexual intercourse with “his spouse” without the consent of the spouse where there is a divorce pending, a decree of judicial separation, a separation agreement or an order of a court for the person not to molest or co-habit with his spouse, or where the person has notice that a petition for judicial separation, divorce or nullity of marriage has been presented to a court, would be guilty of an offense and liable to imprisonment for a term of 15 years.

Under the amended act, a person found guilty of having sexual intercourse with his or her spouse without the consent of that spouse, and knowing that the spouse does not consent to sexual intercourse or recklessly does not care whether the spouse consents, would be guilty of spousal sexual abuse.

The time to criminalize marital rape passed a long time ago. It is our view that the government of The Bahamas should take progressive action in this regard.

This is not a matter of pleasing the international community, as some detractors have argued.

It is a matter of protecting human dignity and sending a strong message that sexual abuse is intolerable, no matter the circumstances, and no human being can be the property of another.

Candia Dames is the executive editor of the Nassau Guardian.
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