{"id":122039,"date":"2014-08-10T20:56:00","date_gmt":"2014-08-11T00:56:00","guid":{"rendered":"http:\/\/dominicanewsonline.com\/news\/?p=122039"},"modified":"2014-08-10T20:56:00","modified_gmt":"2014-08-11T00:56:00","slug":"marital-rape","status":"publish","type":"post","link":"https:\/\/dominicanewsonline.com\/news\/homepage\/features\/commentary\/marital-rape\/","title":{"rendered":"Marital Rape"},"content":{"rendered":"

\"commentary\"Are you a married woman living in the Commonwealth of Dominica, Trinidad and Tobago, Barbados or Bahamas? Has your husband ever forcibly had sexual intercourse with you despite your clear indication that you do not consent? Well Mrs. \u2026 if you have been experiencing such abuse then depending on where you live you will be educated on the laws relating to your husband\u2019s actions. You will know whether and at what stage he could be arrested and charged for committing an offence against you, the nature of offence your husband can be charged with and the penalties to be imposed on him if he is found guilty.<\/p>\n

In\u00a0Dominica\u00a0<\/strong>your husband cannot be charged with rape unless the following circumstances exist in respect to your marriage:-<\/p>\n

    \n
  1. You have already filed divorce proceedings and the Judge has granted a decree in your favour.<\/li>\n
  2. You have filed for and received a decree of judicial separation.<\/li>\n
  3. There is an order granted in your favour that he does not molest you or have sexual intercourse with you.<\/li>\n
  4. A separation agreement between you and your husband.<\/li>\n<\/ol>\n

    As a wife if you report this matter to the police and want your husband to be prosecuted for it, the police would not be able to charge him unless one of the above circumstances are in place in relation to your marriage and further that sexual intercourse occurred between you in that your husband\u2019s penis\u00a0penetrated\u00a0<\/strong>your vagina to\u00a0any extent<\/strong>. See Sexual Offences Act No.1 of 1998 (Dominica). \u00a0Note that the mere filing of the petition for divorce is not enough as the court has not made any pronouncement as yet. In the case of\u00a0R v Miller<\/strong>\u00a0(1954) 2 All ER 527 the wife filed the petition for divorce and before it was heard the husband had sexual intercourse with her without her consent. The indictment filed against him was struck out since without the petition for divorce being heard this did not amount to a revocation of the consent of marital intercourse.<\/p>\n

    Therefore if any of the requirements as set out in the Act are present and the husband forces himself on you then he could be prosecuted for so doing and if found guilty he would be liable to be imprisoned for a period of\u00a014 years<\/strong>.<\/p>\n

    \u00a0In essence the laws of Dominica clearly indicate that in relation to rape between spouses the relationship between husband and wife must have broken down (when the sexual act took place) to the extent where the wife has taken legal steps to withdraw her cohabitation with her husband and or terminate her marriage before he can be found guilty of having sexual intercourse with her against her will.<\/p>\n

    Historically husbands had what was called Marital Immunity. This meant that they could not be prosecuted for having sexual intercourse with their wives without their consent.<\/p>\n

    In 1736 Sir Matthew Hale the then Chief Justice of England in his \u201cHistory of the Pleas of the Crown\u201d Volume 1 page 629 stated the following:-<\/p>\n

    \u00a0\u201c\u2026the husband cannot be guilty of a rape committed by himself upon his wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.\u201d<\/p>\n

    It would appear that upon marriage you gave your husband rights in relation to sexual intercourse with you. \u00a0According to the case law, it would appear that even if your husband has a communicable disease and has sexual intercourse with you against your will he cannot be charged with rape or assault occasioning actual bodily harm against you. In the case of\u00a0R. v Clarence<\/strong>\u00a0(1888) 22 QBD 23 the husband had sexual intercourse with the wife knowing that he had gonorrhea. \u00a0She did not know this until she contracted the disease. The court held that the conduct of the husband did not amount to the offence of assault as charged and one judge clearly stated that between married spouses rape is impossible.<\/p>\n

    When you gave your hand in marriage to your husband you gave him implied consent to have sexual intercourse with you. This is the position unless you invite the court to intervene by way of filing a petition to legally withdraw cohabitation or you and your husband have an agreement that he should not have sexual intercourse with you. If he breaches that agreement as abovementioned or ignores the court\u2019s order, his act of having sexual intercourse with you is rape.<\/p>\n

    \u00a0In Barbados the husband can be found guilty of raping his wife if he forces her to have sexual intercourse or because of fear she has sexual intercourse with him. For the offence to be committed by the husband they must be \u00a0( as in Dominica ) a separation order, decree nisi, separation agreement\u00a0 or the court has made order that the husband should not molest or interfere with the wife or to have sexual intercourse with her. If the husband is found guilty he could be sentenced toimprisonment for life<\/em>. See Sexual Offences Act 1992 at section 3(4) Barbados<\/p>\n

    Section 3 (4) A husband commits the offence of rape where he has sexual intercourse with his wife without her consent by force or fear where there is in existence in relation to them<\/p>\n

    Cap. 214.<\/strong><\/p>\n

    (a)\u00a0<\/em>a decree nisi of divorce;<\/p>\n

    (b)\u00a0<\/em>a separation order within the meaning of section 2 of the\u00a0Family<\/em><\/p>\n

    Law Act;<\/em><\/p>\n

    (c) a separation agreement; or<\/p>\n

    (d) \u00a0<\/strong>an order for the husband not to molest his wife or have sexual intercourse with her.<\/p>\n

    (5) A husband who commits the offence of rape is liable on conviction on indictment to imprisonment for life.<\/p>\n

    Also in Bahamas the laws are similar to those of Dominica except that in their legislation if the husband is aware that a petition for divorce has been filed by the wife and commits the act against her then he is guilty of the offence of sexual assault by a spouse and is liable to be sentenced to a period of 15 years imprisonment.<\/p>\n

    Section 15 of the Sexual Offences Act Chapter 99<\/p>\n

    Any person who has sexual intercourse with<\/em><\/p>\n

    his spouse without the consent of the spouse \u2014<\/em><\/p>\n

    (a) where there is in existence in relation to them \u2014<\/em><\/p>\n

    (i) a decree\u00a0<\/em>nisi\u00a0<\/em>of divorce;<\/em><\/p>\n

    (ii) a decree of judicial separation;<\/em><\/p>\n

    (iii) a separation agreement; or<\/em><\/p>\n

    (iv) an order of a court for the person not to<\/em><\/p>\n

    molest or co-habit with his spouse, or any<\/em><\/p>\n

    other order made under Part II; or<\/em><\/p>\n

    (b) where the person has notice that a petition for<\/em><\/p>\n

    judicial separation, divorce or nullity of<\/em><\/p>\n

    marriage has been presented to a court,<\/em><\/p>\n

    is guilty of the offence of sexual assault by spouse and<\/em><\/p>\n

    liable to imprisonment for a term of fifteen years.<\/em><\/p>\n

    Section 8 (2) refers to having sexual intercourse where the accused knows that he has HIV and the consenting party does not know, even if the consenting party consents, the accused is guilty of an offence and can be sentenced to a period of 5 years imprisonment. There is no indication that the husband and wife are included in that section. Therefore it may well be that the findings in\u00a0Clarence<\/strong>\u00a0case above dealing with gonorrhea will apply here. Except that if the requirements of the section have been met he will be guilty of the offence of rape against his wife.<\/p>\n

    However in Trinidad and Tobago the husband is not so lucky. There the legislators did not give the husband any special benefits even though he is married to the victim. The Sexual Offences Act Chapter\u00a011:34<\/span><\/span>\u00a0amended by\u00a0Act No. 31 of\u00a0<\/em><\/strong>2000 \u00a0\u00a0refers to rape and indicates that \u00a0if he\u00a0<\/em><\/strong>has sexual intercourse with her without consent or reckless as to whether she consents or with consent obtained by fear, impersonation fraudulent misrepresentation or unlawful detention then \u00a0the husband can be imprisoned for life. They also included section 4A which defined\u00a0g<\/em>rievous sexual assault\u00a0<\/em>to include penetration of objects other than penis \u00a0into the vagina, anus, mouth or by forcing an object into the penis, anus or mouth or the placing the mouth of the accused on the vagina of the virtual complainant. It was then clearly indicated that the definition of grievous sexual assault applies to husband and wife. Therefore, any nonconsensual sexual act committed by the husband against the wife will incur the same penalties as if the wife were raped or grievously sexually assaulted by a stranger.<\/p>\n

    \n

    Section 4 of the Act is repealed and the section is substituted:<\/strong><\/strong><\/p>\n

    \u00a0(1) Subject to subsection (2), a person(\u201cthe accused\u201d) commits the offence of rape when he has sexual intercourse with another person (\u2018the complainant\u2019)\u2014<\/strong><\/strong><\/p>\n

    (a)without the consent of the\u00a0<\/em><\/em>complainant where he knows that the complainant does not consent or<\/strong><\/strong><\/p>\n

    (b)with the consent of the complainant where the consent-<\/em><\/em><\/p>\n

    (i) is extorted by threat or fear of bodily harm to the complainant or to another;<\/em><\/em><\/p>\n

    (ii) is obtained by personating someone else;<\/em><\/em><\/p>\n

    (iii) is obtained by false or fraudulent representations as to the nature of the intercourse; or<\/em><\/em><\/p>\n

    (iv) is obtained by unlawfully detaining the com<\/em><\/em>plainant<\/p>\n

    (5) This section also applies to a husband in relation to the commission of the offence of rape on his wife.<\/em><\/em><\/p>\n

    \u00a0\u00a0(a)\u00a0<\/em>the penetration of the vagina or anus of the complainant by a body part other\u00a0<\/em>than the penis of the accused or third person as the case may be;<\/em><\/p>\n

    (b)\u00a0<\/em>the penetration of the vagina or anus of the complainant by an object\u00a0<\/em>manipulated by the accused or third person, as the case may be, except\u00a0<\/em>when such penetration is accomplished for medically recognised treatment;<\/em><\/p>\n

    (c)\u00a0<\/em>the placing of the penis of the accused or third person, as the case may be,\u00a0<\/em>into the mouth of the complainant; or<\/em><\/p>\n

    (d)\u00a0<\/em>the placing of the mouth of the accused or third person as the case may be, on to or into the vagina of the complainant<\/em><\/p>\n

    And at section 5 (3) of the amendment it states thus:<\/p>\n

    This section also applies to a husband in relation to the commission of the offence of grievous sexual assault on his wife.<\/em><\/p>\n

    In the United States of America most states have legislated that it is an offence for a husband to rape his wife. Those states also\u00a0had Marital Immunity but in the early 1970\u2019s the various states\u00a0 removed the husband\u2019s immunity which essentially meant that if the husband committed \u00a0the\u00a0forceful act he is thereafter treated\u00a0as if he was a stranger. \u00a0\u00a0<\/em><\/p>\n

    Wives, depending on the country in which you live you should familiarize yourself with the laws so you know what to do if you are the subject of sexual abuse from your husbands.<\/p>\n

    In conclusion it is clear that the penalties which can be imposed against a husband are most severe and have been put in place to deter the husband from continuing to force his wife to have sex when she expressly states that she does not consent.<\/p>\n

    Those husbands living in the Caribbean mentioned can be sentenced to periods of imprisonment ranging from 14 years to life for ravishing their wives bodies without their consent and with scant regard for the wives\u2019 pride and dignity when doing so. Often it has been advocated that\u00a0\u2018no<\/strong>\u00a0means no\u2019<\/strong>\u00a0but many husbands believe that that statement does not apply to them when they decide to take their sex from their wives.<\/p>\n

    In the meantime if the requirements as stated above (except for Trinidad and Tobago) are not in place the wives are not without a remedy. They can file domestic violence proceeding against their husbands and get restraining orders to prevent continued abuse sexual or otherwise against you. This remedy is available if the wife does not want to divorce the husband but to curb his sexually abusive behavior.<\/p>\n

    Well Mrs\u2026. now you know what\u00a0to do and what will happen if you do report the incident to the police.<\/p>\n","protected":false},"excerpt":{"rendered":"Are you a married woman living in the Commonwealth of Dominica, Trinidad and Tobago, Barbados or Bahamas? Has your husband ever forcibly had sexual intercourse with you despite your clear indication that you do not consent? 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