The marital rape question continues to generate debate in The Bahamas as lawmakers continue to determine how to implement a law that protects wives from spousal abuse in general and rape in particular. While there has been a lively debate on the issue and a proposed legislation generated, the question is, will the proposed legislation solve the problem or are there tweaks that need to be made to ensure that any law implemented results in justice for all.
In studying the proposed law, while the intention is noble, I see potential problems that could result in an undesirable outcome if not adequately accounted for and addressed. As you may be aware, the current issue is that a woman has protection and recourse if she is raped in any environment except marriage. It has been presumed generationally that a man cannot rape his wife because they are in a legal contracted relationship where sex is a right of marriage. This thinking is obviously flawed because sex that is forced or taken against the will of another is a crime. Protection needs to be extended to married women – but arriving at protection has some potential pitfalls that must be accounted for, otherwise there is the potential to create other problems of equal or greater devastation.
The first issue is treating marriage the same as any other relationship. Marriage is unique in that it is both a legal contract and too many a spiritual and sacred contract. That alone sets it apart as a unique environment. The second part is that in marriage there is usually both a history of consensual sex and other family dynamics. The significance of this is that in some other relationships the presence of DNA can confirm that a person is guilty or innocent. In a marriage, the presence of DNA is expected and, therefore, cannot prove or disprove rape. This then means that there is a greater need for verbal evidence which may be inherently difficult to ascertain as there have been numerous cases of false rape accusations even in non-marriage relationships. Some statistics indicate that up to 11.6 percent (Prison Daily Journal West Virginia) of persons serving time for rape are falsely accused. That is a startling figure. If it is that difficult to get it right in unmarried relationships it could possibly be an even greater difficulty in a married relationship. In both California and the United Kingdom and some other states there is a separate law specific to the marriage relationship to account for this difference.
This leads to the second point. Safeguards must be put in place to prevent or deter false accusations. If there are no penalties in place the door could be open for unscrupulous spouses to conjure up accusations to extort money or favor. There have been reported incidences of this happening. In one case, a wife, initiated sex with her husband and then conspired with her lover to charge him with rape to gain access to his assets. Fortunately, the wife later confessed, but if she did not, the husband’s life could have been destroyed and to some extent was already destroyed by the false accusations. There are numerous other examples of this happening from the United Kingdom to Connecticut, to Texas and even here in The Bahamas.
A local law enforcement office with access to relevant information informed me of several cases of false accusations. In one case, an older expatriate woman in a relationship with a younger Black man accused him of rape and it was only after text messages revealed she wanted to continue the relationship that the young man was found not guilty. What if the text messages were not discovered?
Point number three is that to my knowledge there is no range of sentencing to account for mitigating and aggravating factors. From what I have seen of the current law it seems to indicate 15 to 20 years as the range. In other jurisdictions (UK, West Virginia, California) sentences range from court order counseling to four years and up to 20 years for aggravated cases.) In most crimes you would have first, second or third degrees of the crime which attract different sentences. If the case is not aggravated, there should be a lower sentence than what would be considered aggravated. There should be a wider range of sentencing than a default sentence of 15 years.
Point number four is that some of the wording in the current law appears to be ambiguous and could be considered intrusion rather than protection. Here is a sample of the law statement in question: Section 3 a. “1. Consent and the accused belief that the complainant consented shall not be inferred by – a) reason of silence or lack of resistance on the part of the complainant; or b) reason of sexual arousal on the part of the complainant. 2. Whether a belief is reasonable is to be determined having regard to all of the circumstances including any steps the accused took to ascertain whether the complainant was consenting.” This to me is overly intrusive. If a woman is saying “no” it should be clear that she is saying no verbally because non-verbal intent is extremely difficult to interpret. This seems like intrusion rather than protection. A husband could make a case from this statement that it appears that a man may have to have legal counsel in his bedroom to determine whether sex with his wife is legal or not. Issue of non-verbal intent should be adjudicated between the two married parties and not the state.
I am, obviously, for the protection of abused women but not at the risk of making criminals out of husbands. If there are clear obvious cases of rape, I have no issue or objection. If we intrude to the point of adjudicating unclear interactions in a marriage relationship, I cannot support such a clause. I am, therefore, supportive of protective legislation but in intrusive legislation.
• Pastor Dave Burrows is senior pastor at Bahamas Faith Ministries International. Feel free to email comments, whether you agree or disagree, to firstname.lastname@example.org. I appreciate your input and dialogue. We become better when we discuss, examine and exchange.