Recent events have reignited national debate on the issue of marital rape. Critics of both sides of the coin have expressed their beliefs.
Some have pointed to the scripture to make their argument that a man cannot rape his wife.
Senior pastor at Bahamas Faith Ministries Fellowship and President of Bahamas Faith Ministries International Dave Burrows recently addressed the matter in his column “Diplomatic Notes”.
“Rape of any kind is not a good thing and is an affront to human decency, so on the surface, it would seem an open-and-shut case when it comes to marital rape,” he said.
“A husband should simply not rape his wife. As we examine this further, it becomes more complicated. While I agree that rape of any kind is wrong and that a husband should not rape his wife, there are several questions that must be answered and issues addressed before we adopt laws that seem to be appropriate.
“So, what are the potential problems with marital rape laws and why should we carefully consider all the factors to ensure that the laws are fair to all? What follows is a thorough review conducted by myself and a team of lawyers consulted to address this issue.”
Burrows said there are a number of questions that must be confronted when legislating marital rape.
“What if the wife wants to extort money from the husband and uses the rape card as leverage? What if a wife and a lover conspire against the husband and use the threat of prosecution as leverage to attain something from the husband,” he said in the column.
“Is it easy or difficult to prove when rape occurs in a marriage? Do we treat marital rape the same as rape outside of marriage?
“If persons are living together in an otherwise normal marriage with no history of abuse, how does one prove marital rape?
“In some cases, it may be very clear but in other cases, it may be a you say, I say and lead to a false conviction. Should the issue of rape in marriage be focused on identifying physical and sexual abuse with the nature of rape being difficult to prove in a marriage?”
Section 3 of the Sexual Offenses and Domestic Violence Act defines rape as the act of any person not under 14 having sexual intercourse with another person who is not his spouse without consent; consent obtained by personating the spouse of that person; consent obtained by false representations; and with consent which has been extorted by threats of fear or bodily harm.
Proponents of criminalizing marital rape say the government need simply bring an amendment to the act by removing the words “who is not his spouse”.
But Burrows argued that it may not be that simple.
“Rape in general is a very complex issue and from my research, a very thorny prospect,” Burrows said. “One recent article I read indicated that as many as 11 percent of men convicted of rape were falsely accused.”
However, he said he is wary about the potential for abuse.
“So, where do I stand on the issue? I am firmly against all forms of rape but I am uncertain that marital rape laws can be executed flawlessly,” he added.
“I do see potential for abuse of the law and for it to be used malevolently. Perhaps a sexual abuse law amendment that covers sexual abuse/rape of spouse rather than a specific marital rape law may suffice. In order for me to be convinced of the success for such a law to be implemented in The Bahamas, I would need to have the benefit of research showing the history of how these laws were implemented in societies similar to The Bahamas and if there have been cases of wrongful or questionable convictions.
“Has it been a simple process that is clearly defined and executed or has it been cloudy and resulted in persons’ reputation wrongfully impugned?
“From a biblical (Kingdom) perspective, this issue should not be an issue of concern. The Bible does indicate that your body is not your own and that husbands and wives should render to each other and not withhold sex as a matter of order within a godly relationship. The Bible is also clear that husbands should love their wives and wives should respect and honor their husbands. If you love and honor, you will not abuse or take advantage of your wife against her will. Raping your wife against her will is not loving your wife. If this occurs, the offending person is not living by the clearly stated and established Christian living standards.”
Recently, a Supreme Court judge ruled that though a woman who filed for divorce claimed she felt like a rape victim “for an extensive period of time” when her spouse had sex with her, as it stands, there can be no rape in marriage in The Bahamas.
The woman was granted the divorce on the grounds of “cruelty”, which is one of the grounds for divorce in Bahamian law.
This case prompted renewed calls for the criminalization of marital rape.
Prime Minister Philip Davis was among those who commented on the matter generally earlier this year, insisting that rape is rape.
In response, Bahamas Christian Council (BCC) President Bishop Delton Fernander said that while the BCC agrees with Davis’ assertion that “rape is rape”, the council wants to preserve the “sanctity of marriage”.
“We want to preserve the sanctity of marriage and we want to protect those who might be raped, because it is true that rape is rape,” he said.
“And so, it is a difficult walk because we have the church and that is holy and sacred to us, and we do have a divided body on the matter.”
In his column, Burrows added, “Provision should be made for marital rape/sexual assault whether there is a specific new law or amendment to existing law, but the law should take into account potential abuses and ensure that there is protection for the accused in cases where they may have been maliciously accused.
“I think it is also important to distinguish between criminal rape that occurs outside of a marital relationship and the sexual abuse that can occur in marriage and there should be a difference in sentences.
“There may be varying degrees of this offense ranging from less serious to really extreme criminal behavior and, as such, we should want to ensure that the amendments to the act build in some consideration for the fact that each case should be considered on its individual merits.”
He also said sentencing should be determined based on the severity of the crime.
“I contend that a minimum sentence previously proposed of 15 years is excessive if we consider circumstances and degree of sexual assault,” Burrows said.
“Perhaps consideration should be given to sentences ranging from court ordered counseling with the victim’s consent to one to three years for sexual assault, not involving violence, what would be termed simple sexual assault/ rape; five to seven years for aggravated sexual assault rape and 15 or more years for extreme aggravated sexual assault/rape.”
The Bahamas has been grappling with the issue of criminalizing marital rape for years.