The August 29 decision by Supreme Court Justice Denise Lewis-Johnson in a divorce case in which she ruled that under Bahamian law there is no rape in marriage, has left some applauding and others outraged.
While we understand the outrage, directing it toward the judge — as some did on social media, on talk shows and in other forums yesterday — demonstrated ignorance of the law and was entirely misplaced.
Justice Lewis-Johnson’s ruling was not surprising to anyone who understands that Bahamian law does not recognize rape in a marriage. The ruling provided a clear and chilling example of the absurdity of this archaic law.
A woman filed for divorce on the basis of cruelty and alleged that her husband subjected her to emotional and mental abuse throughout the marriage by repeatedly having sex with her against her will, which she described as acts of rape, and “indicated she was afraid he would one day snap”.
The judge found that the actions of the husband who repeatedly forced himself on his wife were “cruel” and granted the woman a divorce.
While noting that the courts “cannot and must not succumb to the temptation to reform laws”, Lewis-Johnson said the husband ignoring the wife’s “feeling of not being a willing participant in sexual intercourse” met the grounds for cruelty.
“The court accepts that rape is a most heinous act of cruelty and a malicious violation of a person,” she said.
“However, on a strict reading of the laws of The Bahamas, there is no rape in marriage. Pursuant to section 3 of the Sexual Offences Act, the law does not allow for one spouse to rape the other.”
Judges exist to interpret the laws of the country, not to make the laws.
Justice Lewis-Johnson’s ruling refueled the prickly marital rape debate in The Bahamas.
Five years ago, UN Special Rapporteur on Violence Against Women Dubravka Šimonović said The Bahamas was out of step with the UN’s Convention on the Elimination of All Forms of Discrimination Against Women as it has failed to criminalize all forms of marital rape. The Bahamas signed onto the convention in 1993.
Successive administrations committed to addressing the marital rape issue, but in the face of pushback from some segments of the church, they backed off.
Prime Minister Philip Davis has said this is not a priority issue for his administration. But Minister of Social Services Obie Wilchcombe said this week The Bahamas should stop ignoring the issue.
“It’s not a priority as set by the prime minister, but the reality is that it’s an issue that’s long outstanding and we have to deal with it in any event because it’s been on the issue of the international floor,” said Wilchcombe, who plans to meet with church leaders this month to discuss the matter.
It is quite simply nonsensical, and maybe even cowardly, for the prime minister to use the cop-out line about marital rape not being a priority issue.
Consultations and a simple law change need not distract from any priority items, like making life a bit easier for the most vulnerable in this era of high inflation.
We have said it before. Wives do not owe their husbands sex, nor should husbands be forced to have sex with their wives. And it is time we shun those who continue to suggest that is the case.
At the same time, we ought to give a serious look at certain aspects of family law, like the current divorce law. Currently, grounds for divorce include adultery, cruelty, desertion, living separate and apart, and homosexuality, sodomy and bestiality.
A decision by a spouse that the marriage has broken down should be enough of a ground for a divorce. Having to go through the often long and painful process of outlining other grounds should be abandoned.
The Barbados Family Law of 1981, for example, provides for divorce on the ground that the marriage has broken down irretrievably, and is granted if the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months.
The time has long passed to reform the archaic aspects of Bahamian family law that remain on our books.
Bahamians angered over the judge’s recent ruling ought to channel that energy and push their parliamentary representatives to amend the Sexual Offences Act.
Maybe then, the Davis administration will find the courage to do the right thing in respect of rape in marriage.
