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. 

PAPER TRIALS for Murder: The Impact on Justice

In criminal trials, witnesses normally provide evidence by going into the witness box and testifying. However since 2015, the amendment of the Evidence Act to include Section 31 makes provision for the statements of witnesses to be admitted in evidence even when the witness cannot be found or is unavailable.

Subject to Section 31G of the Evidence Act:

A statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible, if it is proved to the satisfaction of the court that such person —

(a) is dead;

(b) is unfit, by reason of his bodily or mental condition, to attend as a witness;

(c) is outside of Jamaica and it is not reasonably practicable to secure his attendance;

(d) cannot be found after all reasonable steps have been taken to find him; or

(e) is kept away from the proceedings by threats of bodily harm, and no reasonable steps can be taken to protect the person.

The effect of this is that statements given to police during investigations of a crime, are now allowed to be read into evidence as the Witnesses “Examination-in-Chief”, in a trial once the conditions have been satisfied. This however means that the Defence does not have the opportunity to cross-examine the relevant witnesses which was previously the norm.

The right to cross-examine persons who have made statements against your innocence is an important and fundamental part of our criminal justice system. It is true that there are several cases which have stalled indefinitely due to an unavailability of witnesses who initially gave statements, however it is my opinion that in ensuring a fair trial, paper trials are subtly trampling on the rights of the accused to confront their accuser in a fulsome manner.

Section 15 (6)(d) of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 states:

(6) Every person charged with a criminal offence shall­: 

(d) be entitled to examine or have examined, at his trial, witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

The scope of Cross-Eamination covers topics asked in E
xamination-in-Chief and also questions on witness credibility. Witness credibility questions essentially questions the case put forward by the crown or witness and questions whether the witness is telling the truth. Questions on integrity, bias and capability are allowed.

The Defence is allowed to suggest their case during Cross-Examination and put their scenario of what happened to the witness. The Defence case must be put to the relevant witnesses and failure to cross-examine leaves the evidence of the relevant witness unattacked.

“The objects sought to be achieved by cross-examination are to impeach the  accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examining party.”

Paper Trials place the Defence in a precarious position in ensuring that their case is effectively put, as Cross Examination is limited. This thus forces the hand of the Accused who in a trial has three options- they can choose to remain silent, make an unsworn statement from the dock or they can choose to testify from the witness box.

Many feel compelled to enter the witness box opening themselves up to cross examination when they were not able to cross examine the Prosecution witnesses. The demeanor of the Accused is open for observation to the jury and the scales are automatically tipped in favour of the prosecution.

Paper trials are completed quickly, however coupled with the 7 member jury which is in place for non-capital murder offences, the odds are swayed in favour of the prosecution in getting convictions. Especially in cases with many years of delay, the Defence also faces severe hardships in locating witnesses who can assit their case, as persons migrate or lose interest. So the longer that the case takes to be tried, the weaker the Defence case becomes.

The backlog which exists now will be reduced significantly by Paper Trials-but to what effect? Justice in a court of law in a murder case occurs when the relevant and admissible evidence or facts are considered by a jury and they come to a conclusion based on the evidence presented. In a case where the punishment is life imprisonment, I submit that the standard should be higher and not lower in relation to the type of evidence that is made available to the jury for the determination of  guilt or innocence. If the relevant evidence is not put before the jury then how then can we truly say that Justice has been served?