The government has drafted a bill that will criminalize marital rape and has put it out for consultation.
The Sexual Offences (Amendment) Bill, 2022, will repeal section three of the current law by removing the words “who is not a spouse” from the definition of rape.
Under the draft bill, which is subject to change, rape is defined as “the act of any person not under fourteen years of age having sexual intercourse with another person without the consent of that person where he knows that person does not consent or is reckless as to whether the person consents”.
Under the current law, rape is defined as “the act of any person not under fourteen years of age having sexual intercourse with another person who is not his spouse without the consent of that person…”
The new amendment will likely be
controversial. While The Bahamas has committed to criminalizing marital rape, at least three previous administrations have backed off from addressing the issue.
The draft reads that it is a bill “for an Act to amend the Sexual Offences Act to establish marital rape as a sexual offence”.
The five-page draft will also create a new section 3A which deals with consent.
Under the new section, a person shall not be deemed to have given consent to sexual intercourse or indecent assault, where the consent is extorted by threats or fear of bodily harm; induced by abusing a position of trust, power or authority; obtained by administering a substance without the person’s consent capable of causing or enabling that person to be stupefied, put to sleep, and/or overpowered at the time of the act of sexual intercourse or indecent assault.
The bill also lists other acts that will amount to a lack of consent.
Additionally, the bill reads, “Consent, and the accused’s belief that the person with whom he is alleged to have had sexual intercourse, or who he is alleged to have indecently assaulted, consented, shall not be inferred by (a) reason of silence or lack of physical resistance on the part of that person; or (b) reason of sexual arousal on the part of that person.”
The draft also defines consent as “the active agreement to sexual intercourse or to indecent assault, given expressly and freely, by overt acts, or words indicating agreement by a person, who has the capacity or legal ability to consent”.
Indecent assault is defined as assault against another person where the accused touches a person in a sexual way, among other acts, without consent.
A person convicted of indecent assault is liable to imprisonment for a term not exceeding eight years.
The Department of Gender and Family Affairs will hold a one-day symposium at Breezes resort today on the proposed law.
As noted, it is the latest attempt by a sitting administration to tackle the longstanding issue.
In 2009, the Ingraham administration tabled a bill that would have made spousal rape a crime with a possible life sentence.
Former Prime Minister Hubert Ingraham explained last week that he had to withdraw the bill because he did not have the support of some members of the Free National Movement or the Progressive Liberal Party.
“I assume that [Prime Minister Philip] Davis will make a judgement as to whether or not he has the support of his members to pass it,” he said.
“You know, many persons who you see parade around here as an ordinary, decent human being do not believe that marital rape ought to be a criminal offense and, in private, they have their views.”
There was also strong pushback from the church.
In 2013, then-Attorney General Allyson Maynard-Gibson told the Human Rights Council in Geneva that the Christie administration was considering criminalizing marital rape. It never did.
In 2018, the Minnis administration made a similar pledge and, likewise, never acted on the issue.
In 1993, The Bahamas ratified the United Nations (UN) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
The criminalization of marital rape is one of the commitments contained in the convention.
Five years ago, UN Special Rapporteur on Violence Against Women Dubravka Šimonović pointed out that The Bahamas has failed to live up to obligations under CEDAW as it has failed to criminalize all forms of marital rape.
Davis has remained non-committal on whether the government will criminalize it.
But Minister of Social Services Obie Wilchcombe insisted recently that while it is not a “top priority” for the Davis administration, addressing the issue is still a priority.
Last month, 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 according to law.
“The court accepts that rape is a most heinous act of cruelty and a malicious violation of a person,” Justice Denise Lewis-Johnson said in the ruling.
“However, on a strict reading of the laws of The Bahamas, there is no rape in marriage. Pursuant to section three of the Sexual Offences Act, the law does not allow for one spouse to rape the other.
“In this place, we interpret existing laws and apply them. We cannot and must not succumb to the temptation to reform laws.”