Breaking Down Sexual Offences Act
Readers this week may be puzzled by today’s headline. Rape is rape, regardless of who commits the act. Right? The truth is that there are many countries that disagree, and Guyana used to be one of them.
Yes. Currently section 37 (1) of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“the SOA”) states that a marriage or other relationship (such as a common-law relationship), previous or existing, is not a defence to a charge of any offence under the SOA. This provision means that that no man or woman is not immune from charge or prosecution if they commit rape or any sexual offence against their spouse or any person they are or were in a relationship with.
It may shock you to find that there are many Guyanese who disagree with this law, and that there are even countries in the Commonwealth Caribbean in which marriage immunizes, for example, a husband from being charged and tried for rape if he has sex with his wife against her will.
Section 3 of the Sexual Offences and Domestic Violence Act of the Bahamas says that if a man or woman has sexual intercourse with their spouse against their will, this is not rape.
In Jamaica, section 5 (1) of its Sexual Offences Act says that a husband is immune from charge or prosecution for raping his spouse unless: i) the spouses have separated and have lived separately; ii) there is a written separation agreement; iii) proceedings for the dissolution or nullification of marriage have been commenced, iv) and or where the husband knows that he has a sexually transmitted disease.
Such laws, and others like them, are referred to as the marital exemption/marriage exception to the law of rape.
With the insertion of section 37 in the SOA, Guyana effectively abolished the marital exemption/marriage exception.
Today we trace the origin and death of this exemption/exception in Guyana. Unfortunately, today’s article is not as simple as usual, and it requires us to wade through some case law and legal texts.
In the 16th century, and before, the popular view in England was that a husband cannot be guilty of rape of his wife because the wife, by marriage, continuously consents to her husband’s rights to sexual intercourse (see Sir Mathew Hale, History of the Pleas of the Crown, 1st ed. (1736), vol 1, ch 58, p 629).
Edward Hyde East, in Treatise of the Pleas of the Crown, vol 1, ch X, p 446, wrote “a husband cannot by law be guilty of ravishing his wife on account of the matrimonial consent which she cannot retract.” In Archbold Pleadings and Evidence in Criminal Cases, First Edition 1822, it was said that “a husband also cannot be guilty of rape upon his wife.”
The first decision which considered and adopted these views came in 1888.
However, in 1991, the House of Lords in R v R [1992] 1 AC 599 said that while the statements of Hale and co “… [were] generally regarded as an accurate statement of the common law of England”, “…[the] proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective or the state of her health or how she appears to be feeling at the time. In modern times, any reasonable person must regard that conception as quite unacceptable.”
This was the first reported decision by the most superior English court abolishing the marital exemption/marriage exception, but it seems that the courts had been whittling away the scope of this exception for some time.
In R v Clarence (1888) 22 Q B D, a court of 13 judges agreed with Hale’s statement, although dissenting judges also said they were not prepared to accept that rape between married persons was impossible.
Later decisions seemed to either agree with Hale’s proposition completely, or mostly, in which case they carved out circumstances in which the exemption/exception would not apply.
In R v Clarke [1949] 2 All ER 448, the court accepted Hale’s position, but said that the wife’s consent was revoked where a court made an order that she was no longer bound to cohabit with her husband.
In R v Miller [1954] 2 QB 282, the court said that a husband has a right to marital intercourse, a wife cannot refuse her consent, and if a husband has intercourse with her wife against her will, it is not rape. The court added, however, that if he used violence to coerce her to do so, he could be guilty of common assault.
In R v O’Brien (1974) 3 All ER 663, the court said that a decree nisi terminated a marriage and revoked a wife’s implied consent to intercourse, so that any subsequent intercourse without her consent was rape. A similar decision was given in R v Roberts [1986] Crim LR 188 in the face of a separation agreement between the spouses.
In R v Steele (1976) 65 Cr App R 22, the court said that if spouses lived apart, and the husband undertook not to molest his wife, the wife’s consent was revoked, and subsequent intercourse by the husband without the wife’s consent was rape.
However, in R v Sharples [1990] Crim LR 198 the court said that even where a family protection order is in place in favour of the wife, and the husband has sexual intercourse with her against her will, this was not rape.
Then came three important decisions of lower courts in 1991.
In R v C (Rape: Marital Exemption) [1991] a All ER 755, the court said that now that the law had developed, there is no marital exemption to the law of rape.
In R v J (Rape: Marital Exemption) [1991] ER 759, the court, interpreting legislation, found that the marital exemption was preserved.
In R v S 15th January 1991 (unreported), the judge decided that the marital exemption to rape was preserved subject to common law exceptions, but also said that the court was allowed to define additional exceptions. Thus, he said that the marital exemption did not apply where a protection order was in place.
Finally, in R v R [1992] 1 AC, the House of Lords said that the proposition by Hale suggests that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective or the state of her health or how she appears to be feeling at the time, adding that there is no reason why the entire proposition of marital exemption to the law of rape should not be held inapplicable in modern times. In fact, the court said that such a law was never the law of England and described it as a fiction which crept into the common law.
I do not know whether, and if so, to what extent this decision influenced the law of rape in Guyana between 1991 and 2010. However, I do know that following extensive consultations, a new SOA was passed in 2010, which, under section 37, expressly abolished the marital exemption/marriage exception to rape.
Today, most people I speak to assume that the current legal position has always been the case, taking for granted this law, which enhances female bodily autonomy and agency, and is still relatively new, even as steps are being taken to further prevent and mitigate sexual offences.
Mr Chevy Devonish is a Senior Legal Advisor with the Attorney General’s Chambers and Ministry of Legal Affairs, and a Part-time Lecturer at the University of Guyana. You can contact Mr Devonish
at chevydevonish@gmail.com.
