Undoubtedly, the Caribbean woman is empowered in many ways. Gone are the days where women were explicitly excluded from equal opportunity to access education.
In fact, women are excelling in education, even though this has not translated into equal opportunity in employment and political and public leadership.
Regrettably too, we are still in a time where women do not have autonomy over their bodies. Women in at least five CARICOM member states still experience rape within marriage with no criminal sanction for rape.
Discussions around marital rape continue to be impassioned and fiery. If we examine rape and sexual violence we know at once that one individual has taken away another individual’s consent, choice and autonomy over their own body.
All CARICOM member states engage in the United Nations General Assembly. Almost 30 years ago on December 20, 1993 the General Assembly passed resolution 48/104, which notes violence against women encompasses marital rape. While not legally binding, this resolution is a statement of principle by the international community.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is legally binding. All CARICOM member states have ratified CEDAW and are obligated to exercise due diligence to combat violence against women.
This obligation is outlined clearly in general recommendation (GR) 19 of CEDAW, which interprets the convention as requiring that state parties implement effective legal measures, including penal sanctions, civil remedies and compensatory provisions, to protect women against all forms of violence.
Paragraph 33 of CEDAW GR 35 requires states to “ensure that the definition of sexual crimes, including marital and acquaintance/date rape is based on lack of freely given consent, and takes account of coercive circumstances”.
The Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, known as the Belém do Pará Convention recognizes all gender-based violence as an abuse of women’s human rights and fundamental freedoms.
The Inter-American Commission on Human Rights demands that states a) adopt criminal laws to prevent, punish and eliminate violence against women inclusive of marital rape and b) make no distinction based on the marital status of victim or perpetrator.
Marion Bethel, CEDAW committee member, noted that, “Any government’s failure to criminalize marital rape effectively condones and enables the existence of a domestic space within a marriage where sexual violence is permitted. The married woman is, in effect, abandoned with no legal protection.
“Under human rights law, all women, inclusive of a married woman, have a right to live free from sexual violence, to bodily autonomy and integrity, to self-determination and to personal security. Governments that have ratified CEDAW and Belém do Pará are obligated under international human rights law to promote and fulfill these rights.”
Bringing legislation in line with the normative frameworks is not only the responsibility of the judiciary; we all have a duty to advocate for the changes and to explain why.
In a recent case, a judge in a CARICOM member state outlined in the judgement that at this stage the legislation in the territory of her jurisdiction did not allow for divorce on the grounds of marital rape.
The judge construed the rape alleged by the complainant as cruelty, which is grounds for divorce. She noted that “the court accepts that rape is a most heinous act of cruelty and a malicious violation of a person”.
CARICOM countries have treated rape within marriage in a number of ways: some have criminalized marital rape outright, some do not recognize marriage as a defense, and there are others where marital rape constitutes a crime in very limited circumstances such as a decree nisi of divorce or a judicial separation.
By 2018, for example, only 42 percent of countries worldwide had legislation explicitly criminalizing marital rape and three billion women and girls still lived in countries where rape within marriage was not explicitly criminalized.
A 2020 study found that among the 54 Commonwealth countries, 35 still apply some form of marital exemption to criminal sexual offenses” .
Representative, UN Women Multi-Country Office – Caribbean Tonni Brodber, noted: “This is a social justice issue that requires consultation between leadership and the people of the countries they serve.
“UN Women has worked collaboratively with governments and civil society across the Caribbean to support capacity strengthening for policymakers and judicial officers to come into alignment with international standards as outlined by CEDAW and other relevant frameworks.
“The government of The Bahamas for example has made significant strides towards ensuring this type of consultation.
“Making major moves without consultation could lead to backlash and that is not sustainable. Sustainability lies in the majority being on board for what justice looks like and agreeing on the core principle that a crime is a crime regardless of who commits it, i.e., rape is rape regardless of context, and this should be reflected legislatively.”
She added: “This is a timely opportunity for countries in the Caribbean region that have not yet fully addressed this issue of ensuring perpetrator accountability when it comes to rape, regardless of context in which the rape occurs, to do so. This is not a one-person job; everyone has a role — the legislature, the judiciary and civil society.”
Chair of the Family Law Council in Barbados Madame Justice Jacqueline Cornelius highlighted that by 2016, marital rape was fully criminalized in Barbados:
“Barbados continuously tries to adapt its legislation to the international standards in line with the principle of state obligation.
“This is a natural progression from the state’s determination to enhance the rights of women and girls, with a slate of legislation from as early as 1983 recognizing marriage-like unions and giving the men and women in those unions equal rights to maintenance and property, giving all children equal succession rights and using non-gendered language in sexual offenses legislation, and the process still continues.
“Despite this, we know that there are pockets of cultural resistance to the idea that married partners, especially women can be raped by their spouse. The resistance is rooted in discriminatory, violent and archaic characterizations of human intimate relationships, which, by its treaty obligations, the state has committed to eliminate.”
The former CARICOM Gender Advocate Dr. Rosina Wiltshire, who identifies as a devout Christian, emphasized that in the Bible: “Paul’s letter to the Ephesians says, ‘Wives submit to your husbands’ which is preceded by ‘submit to one another out of reverence for Christ’ and followed by ‘husbands ought to love their wives as their own bodies. He who loves his wife, loves himself’.”
Dr. Wiltshire added, “Unfortunately, many do violence to the teachings by taking one piece out of context. Genesis tells us that God made male and female in his image.”
Kevin Liverpool, board member of the Coalition Against Domestic Violence (CADV Trinidad and Tobago, reflecting on his work with men and boys across the region, shared that, “It’s not uncommon to meet men who believe that a husband cannot rape his wife.
“I think because rape is so horrific, it’s easier for people to believe that most acts of rape are committed by a deranged pervert lurking in the dark. However, rape, like almost all types of sexual assault, is often committed by a person known to the victim.
“Therefore, an important part of the work is helping men understand how patriarchal masculinity is based on dominance over women and male entitlement.
“In intimate relationships, this is manifested in problematic ways including believing that women should always be available and submissive to men and that men should exercise ownership over women’s bodies. Where ideas like these are rigidly adhered to, the resulting power imbalance opens the door widely for the entrance of all forms of violence including marital rape.”
Legislation criminalizing all forms of rape must also tackle the issue of consent.
In a 2021 – 16 Days of Activism to End Violence against Women event, Dr. Ramona Biholar, lecturer in the Faculty of Law at UWI Mona, noted that though most Caribbean countries have existing laws on domestic and sexual violence, there is a restrictive understanding and definition of GBV that facilitates inequitable gender norms.
She said, “The narrow definition of rape (that excludes marital rape, rape of men, transgender and non-binary people) and weaker penalties for non-consensual sexual acts under the various ‘Grievous Sexual Assault Laws’ is a reminder that women remain subordinate in marriage by law and society and the existing policies legally sanction discrimination. “
— UN Women Multi-Country Office – Caribbean