MARITAL RAPE: Selective Ownership of a Woman’s Body

If a man physically abuses a woman, there is outcry. If he lays a hand on her and if she presses charges, he will be dragged before the courts, often with no sympathy for his assault on her- Even if they are married. The threshold is lowered to a point of non-existence for a more intrusive type of assault- Rape.

The message sent is confusing and a firm stance needs to be taken. In cases of rape, personally knowing your attacker does not vitiate the attack, so why then should being married to your attacker preclude an offence from being committed?

The words of the traditional marriage vows are:

"I, ___, take you, ___, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and health, until death do us part."

It did not say:

"I, ___, take you, ___, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse, to own your body, for me to do as I wish, even if you are against it. To hurt you and harm you, because of my sick and twisted mindset ...and there is nothing you can do about it, until death (most likely of the wife) do us part”.

One key element of the offence of Rape is consent. If a wife does not consent, that should be it. The union of marriage has created an impenetrable shield, allowing husbands to perpetuate sexual violence against their spouse with the protection of the law.

There has been a steady increase in domestic violence cases, with many persons, not living to tell the tale. A woman is empowered to stand up against physical domestic violence and is told repeatedly, “a man does not own her…..walk away”, however based on the current stance it would appear as if there are levels of abuse, and physical abuse is placed on a higher tier than the unwanted sexual violation of a wife and/or mother, and she will receive no protection if this is the avenue taken by her spouse.

So many persons are living in marriages where the issues if chronicled would surprise many, but a brave face is put on as they struggle to make it work, or give the appearance of making it work- often because of the standards of the church and/or its members.

An issue also arises where a wife is trying to separate from her husband. A key element needed to successfully file a divorce petition is separation for a year (including sexual contact). What happens when the husband simply won’t leave his wife alone through forced sexual contact? In a Divorce application, the parties may still be viewed as separated even if they continue to cohabit in the same house,  but not if they continue having sex with each other. There are therefore several implications stemming from this issue.

The church has missed the mark in their utterances and their continued unequivocal Stance regarding the submission of a wife to a husband to their own detriment. Otherwise Criminal behavior is being encouraged on a weak basis- the husband does not own the outside of the body, so he can be prosecuted accordingly, but he owns the inside of her body, and should not be prosecuted. Selective ownership has no basis in law and it is time for the playing field to be leveled. 

Understanding Self Defence from a Legal Standpoint

Self defence is a complete defence of justification in cases involving all levels of assault. At common law the defence off self-defence operates in three spheres. It allows a person to use reasonable force to:

(a) Defend himself from an attack
(b) Prevent an attack on another person,
(c) Defend his property

Right to defend yourself

Section 23 of The Firearms Act clearly permits the holder of a licensed firearm to discharge said firearm within or about a public place, not only in the lawful protection of his own person or property, but also in the lawful protection of the person or property of others.

It is instructive to note, however, that the protection of life or property has to be lawful. The case law appreciates that the licensed firearm holder who discharges his firearm to protect life or property may not have had time to make entirely rational decisions, given all the circumstances of the particular case; however, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable.

The general principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonable or not).

It is important to note:

                      a) A person who is being attacked should not be expected to 
                   "weigh to a nicety the exact measure of his necessary 
                    defensive action".

b) If the jury thought that in the heat of the moment the defendant did what he honestly and instinctively thought was necessary then that would be strong evidence that only reasonable defensive action had been taken.

c)A jury will be told that the defence of self-defence will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defence.

Excessive force

The issue of a mistake as to the amount of force necessary was considered by the courts  and the law is:"They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable."

No duty to retreat

There is no rule of law that a person attacked is bound to run away if he can. A demonstration by the defendant that at the time he did not want to fight is no doubt, the best evidence that he was acting reasonably and in good faith in self-defence; but it is no more than that. A person may in some circumstances act without temporising, disengaging or withdrawing; and he should have a good defence

It is therefore, a matter for the jury to decide as to whether the defendant acted reasonably in standing his ground to defend himself, or whether the reasonable man would have taken the opportunity to run away.

It is not absolutely necessary that the defendant be attacked first. As Lord Griffith said in Beckford v R [1988] AC 130: "A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike."

Mistake as to Self- Defence

It is possible that a defendant might mistakenly believe himself to be threatened or might mistakenly believe that an offence is being committed by another person, it would appear that such a defendant would be entitled to be judged on the facts as he honestly believed them to be, and hence would be permitted to use a degree of force that was reasonable in the context of what he perceived to be happening.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.

If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury came to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it.

The reality of self -defence in a murder charge

1) It is very difficult for juries to accept this defence in cases where the person who is harmed/killed does not have a weapon or is not armed.

2) The option of manslaughter is often left to the jury which states that the accused did not have the intent to take a life or cause greivous bodily harm (no malice aforethought) but the killing was unlawful.

2) Licensed firearm holders are not automatically protected from murder or manslaughter charges as using a weapon may appear as using excessive force and will be interpreted as being unlawful by the jury.

3) Licensed firearm holders have a great responsibility, and should think twice about discharging their weapon, if under threat, even though the law makes provision for their subjective mind or what they perceive.

June 3, 2016